Consolidate Act No. 223 of 26 February 2017
1) The Consolidate Trade Marks Act
Publication of the Trade Marks Act, cf.
Consolidate Act No. 192 of 1 March 2016
including the amendments which follow from
section 1 of Act No. 1548 of 13 December 2)
2016.
The amendments which follow from section 1
of Act No. 309 of 28 March 2015 to Amend
the Trade Marks Act, the Designs Act, the
Patents Act and the Utility Models Act
(Increased efforts against counterfeiting and
piracy by establishing an enforcement unit,
etc.) are not included in this Consolidate Act
since the amendments have subsequently been
cancelled, cf. section 6(i) of Act No. 1548 of
13 December 2016.
Part 1
General provisions
1.- Pursuant to the provisions of this Act
persons and enterprises may obtain an
exclusive right to trade marks (trade mark
right). Trade marks mean distinctive signs for
goods or services being used or intended to be
used by a commercial enterprise.
Signs of which a trade mark may consist
2.-(1) A trade mark may consist of any sign
capable of distinguishing the goods or
services of one enterprise from those of other
enterprises and capable of being represented
graphically, in particular
(i) words and word combinations,
including slogans, personal names,
company names or names of real
property,
(ii) letters and numerals,
(iii) pictures and designs or
(iv) the shape, equipment or packaging of
the goods.
(2) A trade mark right shall not be obtained
for signs which consist exclusively of either a
shape which results from the nature of the
goods themselves, a shape of the goods which
is necessary to obtain a technical result or a
shape which gives substantial value to the
goods.
Establishing a trade mark right
3.-(1) A trade mark right may be established
either
(i) by registration of a trade mark in
accordance with the rules of this Act for
the goods or services comprised by the
registration or
(ii) by commencement of use of a trade
mark in this country for the goods or
services for which the trade mark has
commenced to be used and for which it
is continuously used.
(2) Use of a trade mark which according to its
nature is excluded from registration shall not
establish any trade mark right.
1) This Act contains provisions implementing parts of Directive 2004/48/EC of the European Parliament and of the
Council of 29 April 2004 on the enforcement of intellectual property rights (EU Official Journal 2004 No. L 195, p. 15).
The Ministry of Industry, Business and Financial Affairs
The Patent and Trademark Office, File No. 17/00030
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(3) If the trade mark is devoid of the required
distinctive character at the commencement of
use, the right shall only be established when
and if a distinctive character is created by the
use of the mark.
Contents of the trade mark right
4.-(1) The proprietor of a trade mark right
shall be entitled to prohibit any person not
having his consent from using any sign in the
course of trade if
(i) the sign is identical with the trade mark,
and the goods or services for which the
sign has been put to use are identical
with the goods or services for which the
trade mark is protected, or
(ii) the sign is identical with or similar to
the trade mark, and the goods or
services are identical or similar, if there
exists a likelihood of confusion
including a likelihood of association
with the trade mark.
(2) Irrespective of the limitation in subsection
1 to goods or services being identical or
similar, the proprietor of the trade mark shall
be entitled to prohibit the use of the trade
mark also in relation to goods or services
which are not identical or similar if the trade
mark has a reputation in this country and the
use would take unfair advantage of, or be
detrimental to, the distinctive character or the
repute of the trade mark.
(3) Use in the course of trade means in
particular
(i) affixing the sign to the goods or to the
packaging thereof,
(ii) offering the goods for sale, putting them
on the market or stocking them for these
purposes under that sign or offering or
rendering services thereunder,
(iii) importing or exporting the goods under
that sign or
(iv) using the sign on business papers and in
advertising.
Limitation of the rights of the proprietor
5.- The proprietor of a trade mark right shall
not be entitled to prohibit others from using,
in the course of trade and in accordance with
honest practices in industrial or commercial
matters,
(i) his own name and his own address,
(ii) indications concerning the kind, quality,
quantity, intended purpose, value or
geographical origin of the goods or
services, the time of production of the
goods or of rendering the services or
other characteristics of the goods or
services or
(iii) the trade mark where it is necessary for
the indication of the intended purpose of
the goods or services, in particular as
accessories or spare parts.
Exhaustion
6.-(1) The proprietor of a trade mark right
shall not be entitled to prohibit the use of the
trade mark in relation to goods which have
been put on the market within the European
Communities under that trade mark by the
proprietor himself or with his consent.
(2) Subsection 1 shall not apply if there are
legitimate reasons for the proprietor to oppose
further commercialisation of the goods,
especially where the condition of the goods
has been changed or impaired after they have
been put on the market.
Conflicting rights
7.- If two or more parties individually claim a
trade mark right to the same or similar signs,
the right which has arisen first shall have
priority, unless otherwise provided for in the
following sections. A registered right shall be
deemed to have arisen on the date of filing of
the application for registration, cf. section 12,
or on the date from which priority is claimed
pursuant to the rules of section 18 or 19.
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8.- A later right to a registered trade mark
may co-exist with an earlier right to a
confusingly similar trade mark, provided that
the application for registration was filed in
good faith and that the proprietor of the earlier
right has been aware of and tolerated the use
in this country of the later right for a period of
five successive years.
9.- A later right to a trade mark may also co-
exist with an earlier right to a confusingly
similar trade mark if the proprietor of the
earlier right has not, within a reasonable time,
taken the necessary steps to prevent the use of
the later trade mark.
10.-(1) In the cases referred to in sections 8
and 9 the proprietor of a later trade mark shall
not be entitled to prohibit the use of an earlier
trade mark even if the proprietor of the earlier
trade mark may no longer invoke his right
against the later trade mark.
(2) In the cases referred to in section 9 it may,
if found reasonable, be decided that one or
both of the trade marks may only be used in a
special manner, for example in a particular
shape or with the addition of an indication of
locality.
Reproduction of a trade mark in
dictionaries, etc.
11.-(1) In encyclopaedias, handbooks,
textbooks or similar publications of
professional nature the author, editor and
publisher shall, at the request of the proprietor
of a registered trade mark, ensure that the
trade mark is not reproduced without an
indication to the effect that it is a registered
trade mark.
(2) If any party fails to comply with the
provisions of subsection 1, he shall be liable
to pay the costs of publishing a correcting
notice in the manner found reasonable.
Part 2
Registration of trade marks
12.-(1) An application for the registration of a
trade mark shall be filed with the Patent and
Trademark Office. The application shall
contain a reproduction of the trade mark and
state the applicant's name or company.
Furthermore, the goods or services in respect
of which registration of the trade mark is
applied for shall be stated.
(2) The application shall be drawn up in
accordance with the provisions laid down
pursuant to section 48. The prescribed fee
shall accompany the application.
(3) The Patent and Trademark Office shall
keep a Register of Trade Marks. The Office
shall publish registrations, etc.
Grounds for refusal
13.-(1) For a trade mark to be registered it
shall be of the nature referred to in section 2,
including having a distinctive character.
(2) The following trade marks shall not be
registered:
(i) Trade marks which consist exclusively
of signs or indications which may serve,
in trade, to designate the kind, quality,
quantity, intended purpose, value or
geographical origin of the goods or
services, the time of production of the
goods or of rendering the services or
other characteristics of the goods or
services.
(ii) Trade marks which consist exclusively
of signs or indications which are
customary in the current language or in
the established practices of the trade to
designate the goods or services.
(3) Irrespective of the provisions of
subsections 1 and 2 a trade mark may be
registered if it has acquired a distinctive
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character prior to the filing of the application
in consequence of the use which has been
made thereof.
14.- Furthermore, the following shall not be
registered:
(i) Trade marks which are contrary to law,
public order or morality.
(ii) Trade marks which are liable to deceive
the public, for instance as to the nature,
quality or geographical origin of the
goods or services.
(iii) Trade marks which have not been
authorised by the competent authorities
and which are to be refused pursuant to
Article 6ter of the Paris Convention for
the Protection of Industrial Property,
and trade marks which include badges,
emblems and escutcheons of public
interest, unless the appropriate authority
has given its consent to their
registration.
(iv) Trade marks which without permission
consist of or contain an element which
may be construed as a personal name or
company name to which another party
has a legal title, or as a portrait,
provided allusion is not made to persons
long dead, or which without permission
contain a distinctive name of or a
picture of the real property of another
party.
(v) Trade marks which without permission
consist of or contain an element which
may be construed as a distinctive title of
the protected literary or artistic work of
another party or which infringe the
copyright in such a work or the right to
a photograph of another party or the
industrial property rights of another
party.
15.-(1) A trade mark shall not be registered if
(i) it is identical with an earlier trade mark,
and the goods or services in respect of
which registration of the trade mark is
applied for are identical with the goods
or services in respect of which the
earlier trade mark is protected or
(ii) there exists a likelihood of confusion,
including a likelihood of association,
with the earlier trade mark, because the
later trade mark is identical with or
similar to the earlier trade mark and the
goods or services are identical or
similar.
(2) For the purpose of subsection 1 earlier
trade marks mean
(i) trade marks of the following categories
with a date of application for
registration which is earlier than the date
of application for registration of the
trade mark, taking account, where
appropriate, of the priority claimed in
respect of those trade marks:
(a) Community trade marks,
(b) trade marks registered in this country
or
(c) trade marks registered under
international arrangements which
have effect in this country,
(ii) Community trade marks for which, in
accordance with the Regulation on the
Community trade mark, the seniority of
a trade mark referred to in paragraph
(i)(b) or (c) is claimed, even if the latter
trade mark has been surrendered or has
lapsed,
(iii) applications for the trade marks referred
to in paragraphs (i) and (ii), subject to
their registration or
(iv) trade marks which, on the date of filing
of the application or, where appropriate,
the date of the priority claimed in
respect of the application, are well
known in this country, in the sense in
which the words "well known" are used
in Article 6bis of the Paris Convention.
(3) A trade mark shall, furthermore, not be
registered if
(i) it is identical with or similar to an earlier
Community trade mark, cf. subsection 2,
and its registration is applied for in
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respect of goods or services which are
not similar to those for which the earlier
Community trade mark is registered,
where the earlier Community trade mark
has a reputation in the European Union
and the use of the later trade mark
would take unfair advantage of, or be
detrimental to, the distinctive character
or the repute of the earlier Community
trade mark,
(ii) it is identical with or similar to a "well
known" trade mark, cf. subsection 2(iv),
and its registration is applied for in
respect of goods or services which are
not similar to those for which the earlier
trade mark is well known, where the use
of the later trade mark might lead to a
likelihood of association between the
marks and the use would take unfair
advantage of, or be detrimental to, the
distinctive character or the repute of the
earlier trade mark or
(iii) it is identical with or only insignificantly
distinct from a trade mark which, on the
date of filing of the application or,
where appropriate, the date of the
priority claimed in respect of the
application, has commenced to be used
abroad and is still in use there for goods
or services which are identical with or
similar to those in respect of which
registration of the later trade mark is
applied for, and the applicant on the date
of the filing of the application had, or
should have had, a knowledge of the
foreign trade mark.
(4) A trade mark shall, moreover, not be
registered if
(i) the trade mark is identical with or
similar to an earlier Danish trade mark
within the meaning of subsection 2 and
its registration is applied for in respect
of goods or services which are not
similar to those in respect of which the
earlier trade mark is registered, where
the earlier trade mark has a reputation in
this country and the use of the later trade
mark would take unfair advantage of, or
be detrimental to, the distinctive
character or the repute of the earlier
trade mark or
(ii) in consequence of use in this country a
right has been obtained to an identical or
confusingly similar trade mark or to
another identical or confusingly similar
sign used in the course of trade prior to
the date of filing of the application for
registration of the later trade mark or,
where appropriate, the date of the
priority claimed in respect of the
application for registration of the later
trade mark, if the proprietor of the
earlier right may prohibit the use of the
later trade mark.
(5) A trade mark shall not be excluded from
registration pursuant to the provisions of
subsections 1 to 4 where the proprietor of the
earlier trade mark or other earlier rights
consents to the registration of the later trade
mark.
Disclaimers
16.-(1) A trade mark right obtained by
registration shall not comprise such elements
of the trade mark as cannot be registered
separately.
(2) If a trade mark contains such elements,
and there is special reason to assume that the
registration of the trade mark may cause
doubt as to the scope of the trade mark right,
such elements may on registration be
explicitly excepted from the protection.
(3) If elements of the trade mark which have
been excepted from the protection later on
appear to have become registrable, a new
registration may be made of those elements or
of the trade mark itself without the limitation
referred to in subsection 2.
Classes of goods
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17.- Trade marks shall be registered in one or
more classes of goods or services. The
Minister of Industry, Business and Financial
Affairs shall lay down provisions concerning
the division into classes.
Convention priority
18.-(1) If an application for the registration of
a trade mark is filed in this country not later
than six months after the filing of the first
application for the registration of the trade
mark in a country party to the Paris
Convention for the Protection of Industrial
Property or member of the World Trade
Organisation (WTO), the application shall on
request receive priority from the first date of
filing. The priority shall imply that in relation
to later occurring circumstances, such as other
persons’ applications for or other persons’ use
of the trade mark, the application shall be
considered filed at the same time as the filing
of the application in the foreign state.
(2) Subject to reciprocity subsection 1 shall
apply mutatis mutandis to trade marks applied
for the first time in a country which is not
party to the Paris Convention or member of
the World Trade Organisation.
Exhibition priority
19.- If an application for the registration of a
trade mark is filed in this country not later
than six months after the trade mark has been
used for the first time for goods displayed at
an official, or officially recognised,
international exhibition, the application shall
on request receive priority from that date. The
priority shall imply that in relation to later
occurring circumstances, such as other
persons’ applications for or other persons’ use
of the trade mark, the application shall be
considered filed at the same time as the use of
the trade mark at the exhibition. The
exhibitions referred to are such exhibitions as
are defined in the Convention on International
Exhibitions signed on 22 November 1928, as
subsequently revised.
Examination and other processing of
applications
20.-(1) If the application does not comply
with this Act or with provisions laid down
pursuant to this Act, or if the Patent and
Trademark Office has other objections to the
acceptance of the application, the Patent and
Trademark Office shall notify the applicant
accordingly and prescribe a time limit for the
applicant to file his observations.
(2) On the expiry of the time limit the Patent
and Trademark Office shall take a decision on
the application, unless the applicant is invited
once more to file his observations.
Claiming a right to a trade mark
21.-(1) If anybody claims to be entitled to a
trade mark applied for or registered, the
Patent and Trademark Office may, if it finds
the question doubtful, invite him to bring it
before the courts within a time limit to be
specified. If the invitation is not complied
with, the claim may be disregarded.
Information to that effect shall be given in the
invitation.
(2) If legal proceedings have been instituted
concerning the right to a trade mark, the
examination and other processing of the case
by the Patent and Trademark Office may be
suspended until a final decision has been
given in the legal proceedings.
Registration
22.- When the application has been accepted,
the trade mark shall be registered, and the
registration shall be published.
Opposition
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23.-(1) When the registration has been
published, oppositions may be filed against
the validity of the registration. The
opposition, which shall state the grounds on
which it is based, shall be filed with the
Patent and Trademark Office within two
months from the date of publication. The
opposition shall be accompanied by a fee.
(2) If an opposition has been filed, the Patent
and Trademark Office shall re-examine the
registration in accordance with section 20.
The provisions of section 28(5) shall also
apply during the examination. The proprietor
of the registered right shall be notified of the
opposition and be given an opportunity to file
his observations.
(3) If the registration is maintained, the
person having filed the opposition and the
proprietor of the right shall be notified
thereof.
(4) If the registration is revoked entirely or
partially, the decision to that effect shall be
published when it has become final.
Amendment of trade marks
24.-(1) At the request of the proprietor
insignificant amendments of a registered trade
mark may be made, provided that the general
impression of the trade mark is not affected
by the amendment.
(2) Amendments of registered trade marks
shall be entered in the Register and published.
(3) At the request of the proprietor
insignificant amendments may also be made
of a trade mark applied for.
Requirement of use
25.-(1) If, within a period of five years from
the termination of the registration procedure,
the proprietor of a registered trade mark has
not put the trade mark to genuine use in this
country in connection with the goods or
services in respect of which it is registered, or
if such use has been suspended during an
uninterrupted period of five years, the
registration may be revoked, cf. section 28,
unless there are proper reasons for non-use.
(2) The following shall also constitute use
within the meaning of subsection 1:
(i) Use of the trade mark in a form which
does not differ significantly from the
form in which it was registered.
(ii) Affixing the trade mark to goods or to
the packaging thereof in this country
solely for export purposes.
(3) Use of a trade mark with the consent of
the proprietor shall be deemed to constitute
use of the trade mark by the proprietor.
Duration of the registration
26.-(1) The trade mark right obtained by the
registration shall be effective from the date of
filing of the application pursuant to section 12
and shall continue to be effective for ten years
from the date of registration.
(2) The registration may be renewed for
further periods of ten years from the expiry of
the registration period in question.
Renewal
27.-(1) The request for renewal shall be
effected by payment of the prescribed fee to
the Patent and Trademark Office not earlier
than six months before and not later than six
months after the expiry of the registration
period.
(2) If the request can be accepted, the renewal
shall be entered in the Register.
(3) The Patent and Trademark Office shall
collect renewal fees from the proprietor of the
trade mark or his agent, but shall not be held
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responsible for any loss of rights as a
consequence of failure to collect.
(4) If the request does not comply with the
provisions laid down, the Patent and
Trademark Office shall notify the requester
accordingly and prescribe a time limit for him
to file his observations.
(5) On the expiry of the time limit the Patent
and Trademark Office shall take a decision on
the request, unless the requester is invited
once more to file his observations.
Part 3
Termination of the registration
28.-(1) If a trade mark has been registered in
contravention of the provisions of this Act,
the registration may be revoked, cf., however,
sections 8 and 9. If the ground for revocation
is lack of distinctive character or the like, cf.
section 13, the use which has taken place after
the registration, cf. section 13(3), shall also be
taken into consideration.
(2) A registration may also be revoked if
(i) the trade mark has not been used in
accordance with section 25,
(ii) in consequence of the activity or
inactivity of the proprietor, the trade
mark has become the common name in
the trade for the product or service in
respect of which the trade mark is
registered or
(iii) in consequence of the use made of the
trade mark by the proprietor or with his
consent in respect of the goods or
services for which it is registered, the
trade mark is liable to mislead the
public, particularly as to the nature,
quality or geographical origin of the
goods or services.
(3) A claim for revocation of a trade mark
under subsection 2(i) may not be advanced if
genuine use of the trade mark is commenced
or resumed in the interval between the expiry
of the five-year period and the date of filing
of the request for revocation. The
commencement or resumption of the use
within a period of three months preceding the
filing of the request for revocation shall,
however, be disregarded if the preparations
for the commencement or resumption of the
use are initiated only after the proprietor has
become aware that a request for revocation
may be filed.
(4) If the ground for revocation relates only to
some of the goods or services for which the
trade mark is registered, the registration shall
only be revoked for those goods or services.
(5) If the ground for revocation is an earlier
conflicting trade mark, a claim for revocation
may only be advanced if the person having
claimed the revocation of the registration at
the request of the other party is able to prove
that the earlier trade mark has been used in
accordance with section 25. If an earlier
registered trade mark has been used only for
some of the goods or services in respect of
which it is registered, it shall only be
considered registered for those goods or
services. Any of the parties may at any time
institute proceedings against the other party
with respect to matters which are brought up
in the case, irrespective of the Patent and
Trademark Office having made a decision on
the case or not.
Revocation by a court decision
29.- Revocation of a registration under section
28 shall be effected by a court decision, cf.,
however, section 30. Proceedings shall be
instituted against the proprietor and may be
instituted by anybody with a legal interest
therein. Proceedings pursuant to the
provisions of section 13 and section 14(i) to
(iii) may also be instituted by the Patent and
Trademark Office.
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Administrative revocation
30.-(1) After the termination of the
registration procedure any person may file a
request with the Patent and Trademark Office
for the revocation of a trade mark registration
if the conditions of revocation in section 28
are complied with. The request shall be
accompanied by a fee.
(2) If a case before the courts concerning a
trade mark registration remains to be finally
decided upon, a request pursuant to
subsection 1 may not be filed concerning the
registration in question.
(3) If proceedings concerning a trade mark
registration are instituted before the courts
prior to a final decision having been made on
a request pursuant to subsection 1 relating to
the registration, the Patent and Trademark
Office shall suspend the examination of the
request until the case has been finally decided
upon, unless the request has been filed by the
proprietor of the trade mark registration.
(4) The proprietor of the registered right shall
be notified of the request and shall be given
an opportunity to file his observations.
(5) If the registration is revoked entirely or
partially, the decision to that effect shall be
published when it has become final.
(6) The decision of the Patent and Trademark
Office may be brought before the Patent
Board of Appeal and the courts in accordance
with section 46. However, any of the parties
may at any time institute proceedings against
the other party with respect to matters which
are brought up in the case, irrespective of the
Patent and Trademark Office having made a
decision on the case or not.
31.-(1) If there is reason to doubt the
existence of a proprietor of a trade mark, or if
his address is unknown, any person with a
legal interest therein may request that the
trade mark be deleted from the Register.
(2) Prior to any deletion the Patent and
Trademark Office shall request the proprietor
to come forward within a time limit fixed by
the Patent and Trademark Office. Notification
of the time limit shall be given by registered
letter or by a similar satisfactory method. If
the address of the proprietor is unknown, the
time limit shall be communicated by public
announcement. If the proprietor thereafter has
not come forward, the trade mark shall be
deleted from the Register.
Cancellation
32.- If a registration of a trade mark, a
renewal of a trade mark registration or an
entry of an amendment in the Register has
been made by an obvious mistake, the Patent
and Trademark Office may within three
months from the date of registration or the
date of the entry cancel the registration, the
renewal or the entry.
Deletion
33.- Deletion from the Register shall be made
if
(i) the registration is not renewed,
(ii) the proprietor of the trade mark requests
deletion of the trade mark,
(iii) the registration is revoked pursuant to
section 23 or
(iv) a decision is made or a court decision is
given of revocation pursuant to section
29, 30 or 31.
34.- Of any court decision concerning a trade
mark registration or a trade mark application
an office copy shall be communicated to the
Patent and Trademark Office by the court in
question.
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Part 4
Special provisions relating to the
registration of foreign trade marks
Domestic registration
35.-(1) An applicant who does not carry on
business in this country and who is not a
resident of a state party to the Paris
Convention for the Protection of Industrial
Property or member of the World Trade
Organisation (WTO) shall prove that a similar
trade mark is registered for him in his home
country in respect of the goods or services
comprised by the application.
(2) Subject to reciprocity the Minister of
Industry, Business and Financial Affairs may
direct that subsection 1 shall not apply.
36.- Subject to reciprocity the Minister of
Industry, Business and Financial Affairs may
direct that trade marks which would not
otherwise be registrable in this country, but
which are registered in a foreign state, may be
registered in this country such as they are
registered in the foreign state. Such a
registration shall not extend further than in the
foreign state.
Agents
37.- The Patent and Trademark Office may
invite the proprietor of a trade mark to
appoint an agent residing in the European
Economic Area (EEA) to receive notifications
of proceedings and all other notifications
concerning the trade mark on his behalf with
a binding effect on the proprietor. The name
and address of the agent shall be entered in
the Register of Trade Marks.
Part 5
Transfer and licensing, etc.
38.-(1) The right to a trade mark may be
transferred in connection with or separately
from the enterprise in which it is used.
(2) If anybody transfers his enterprise, the
right to the trade marks of the enterprise shall
pass to the transferee, unless otherwise agreed
or deemed to be agreed.
39.-(1) The transfer of the right to a registered
trade mark shall on request be entered in the
Register of Trade Marks.
(2) Until the transfer has been communicated
to the Patent and Trademark Office, the
proprietor of the trade mark shall be deemed
to be the latest person entered in the Register.
Licensing
40.-(1) A trade mark may be licensed for all
or some of the goods or services for which it
is registered and for the whole or part of the
country. The licence may be exclusive or non-
exclusive.
(2) At the request of the proprietor or the
licensee the licence shall be entered in the
Register of Trade Marks. An entry shall also
be made in the Register when it is later
established that the licence has terminated.
(3) The proprietor of a trade mark may invoke
the rights conferred by the trade mark against
a licensee who contravenes any of the
stipulations in the licensing contract with
regard to the duration of the licence, the form
in which the trade mark may be used
according to the registration, the kind of
goods or services for which the licence is
granted, the territory within which the trade
mark may be affixed to the goods or the
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quality of the goods manufactured or the
services rendered by the licensee.
Pledging and execution
41.- If the right to a registered trade mark has
been pledged, or if execution has been levied
thereon, the Patent and Trademark Office
shall at the request of the proprietor, the
pledgee or the execution creditor enter a note
to that effect in the Register of Trade Marks.
Part 6
Provisions concerning the legal protection
42.-(1) Any person who intentionally or
grossly negligently infringes a trade mark
right established by registration, use or
pursuant to the Council Regulation on the
Community trade mark shall be punished with
a fine.
(2) If the infringement has been committed
intentionally and under aggravating
circumstances, the penalty may increase to
imprisonment of up to 18 months, unless a
heavier penalty is provided for by section
299b of the Penal Code. Aggravating
circumstances shall in particular be
considered to exist if a significant and
obviously unlawful profit is intended by the
infringement.
(3) Companies etc. (legal entities) may be
held liable to punishment under the rules of
Part 5 of the Penal Code.
(4) In the case of infringements comprised by
subsection 1 proceedings shall be instituted
by the injured party. In the case of
infringements comprised by subsection 2
proceedings shall be instituted only at the
request of the injured party, unless the
institution of proceedings is required in the
interests of the public.
43.-(1) Any person who intentionally or
negligently infringes another person’s trade
mark right shall pay
(i) a reasonable compensation to the
injured party for the exploitation and
(ii) damages to the injured party for the
further injury which the infringement
has caused.
(2) In fixing the damages according to
subsection 1(ii) inter alia the loss of profit
suffered by the injured party and the illicit
profit obtained by the infringer shall be taken
into consideration.
(3) In cases comprised by subsection 1 an
additional compensation may be fixed to the
injured party for non-financial injury.
(4) If the trade mark right has been
established by registration, the rules of
subsection 1 shall also apply to the period
between the filing of the application and the
registration of the trade mark if the infringer
knew or ought to know that the application
had been filed.
3) 43a. - The Maritime and Commercial Court
shall be the Community trade mark court of
first instance, and the Supreme Court shall be
the Community trade mark court of second
instance in accordance with Article 91 of the
Regulation on the Community trade mark.
43b. 4)
-(1) Provisional decisions on injunctions
under Article 99(1) of the Regulation on the
Community trade mark shall be given by the
City Court or the Maritime and Commercial
Court.
(2) The provisions of Parts 40 and 57 of the
Administration of Justice Act shall apply
mutatis mutandis.
43c. 5)
-(1) Provisional decisions on injunctions
which are to have effect within the territory of
any Member State, cf. Article 99(2) of the
Regulation on the Community trade mark,
12
shall be given by the Maritime and
Commercial Court.
(2) The decisions of the Maritime and
Commercial Court pursuant to subsection 1
may be appealed against to the Eastern High
Court.
(3) Moreover, the provisions of Parts 40 and
57 of the Administration of Justice Act shall
apply mutatis mutandis. The Enforcement
Court shall upon request assist the Maritime
and Commercial Court with respect to the
performance of the functions referred to in
section 641 of the Administration of Justice
Act.
43d. 6)
- Provisional decisions on injunctions
pertaining to a national trade mark as well as
a Community trade mark shall be given by the
Maritime and Commercial Court if the
provisional decision pertaining to the
Community trade mark is to have effect
within the territory of any Member State, cf.
Article 99(2) of the Regulation on the
Community trade mark. Section 43c(2) and
(3) shall apply mutatis mutandis.
44.-(1) For the purpose of preventing further
infringements of the trade mark right the court
may, when so claimed, inter alia decide that
goods infringing a trade mark right shall
(i) be withdrawn from the market,
(ii) be removed definitively from the
market,
(iii) be destroyed,
(iv) be surrendered to the injured party or
(v) have the illegally affixed trade marks
removed.
(2) Subsection 1 shall apply mutatis mutandis
to materials, tools or the like which have
primarily been used for illegal production of
the infringing goods.
(3) The measures under subsection 1 shall be
implemented without compensation to the
infringer and shall not affect any damages to
the injured party. The measures shall be
implemented at the expense of the infringer,
unless special circumstances tell against it.
(4) In giving a court decision on measures
under subsection 1 the court shall take into
consideration the proportion between the
extent of the infringement, the prescribed
measures and the interests of any third party.
44a.-(1) In a court decision by which a person
is held liable under section 43 or 44 the court
may, if so requested, decide that the court
decision in full or extracts thereof shall be
published.
(2) The obligation to publish shall rest with
the infringer. The publication shall be made at
the expense of the infringer and in such a
prominent manner as may reasonably be
required.
45.-(1) If a licence has been granted for the
use of a trade mark, the licenser as well as the
licensee shall be considered entitled to
institute proceedings in cases concerning the
infringement of the trade mark right, unless
otherwise agreed.
(2) A licensee who wishes to institute
proceedings shall inform the licenser thereof.
45a.- If the customs and taxation authorities
become suspicious of infringements
comprised by section 42, information to that
effect may be passed on to the proprietor of
the right.
Part 6A
Special unit on enforcement and
counterfeiting and piracy
45b. 7)
-(1) The tasks of the Patent and
Trademark Office concerning the enforcement
of trade mark rights and the combating of
counterfeiting and piracy shall be performed
by a special unit, which consumers,
13
businesses and authorities may approach and
obtain information and guidance.
(2) In specific cases concerning counter-
feiting and piracy the unit shall give advice to
consumers and small and medium-sized
enterprises. On request and against payment
of a fee the unit may give a written advisory
opinion.
(3) The unit shall assist the police and the
prosecution in their efforts against
counterfeiting and piracy.
(4) The Minister of Industry, Business and
Financial Affairs may lay down specific rules
concerning the tasks and organisation, etc. of
the unit.
Part 7
Miscellaneous provisions
46.-(1) The decisions of the Patent and
Trademark Office under this Act may be
brought before the Patent Board of Appeal
(Board of Appeal for Patents and
Trademarks) not later than two months after
the date on which the party concerned was
notified of the decision. The fee for
examination of the appeal shall be paid within
the same time limit. Failure to do so shall
cause the appeal to be rejected. Filing of
appeals with the Patent Board of Appeal shall
have suspensive effect.
(2) The decisions of the Board of Appeal may
not be brought before any higher administra-
tive authority.
(3) Proceedings for the trial of decisions made
by the Patent and Trademark Office which
may be appealed against to the Board of
Appeal may not be brought before the courts
until the decision of the Board of Appeal has
been given. Proceedings for the trial of the
decisions of the Board of Appeal shall be
instituted within two months after the date on
which the party concerned was notified of the
decision. The proceedings shall have
suspensive effect.
47.-(1) The Patent and Trademark Office may
on request undertake the performance of
special tasks concerning trade marks and trade
mark rights.
(2) The Minister of Industry, Business and
Financial Affairs shall lay down rules
governing the payment therefor and the
payment of fees for reminders in the case of
late payment.
(3) The Access to Public Administration Files
Act shall, except for section 8, not apply to
the tasks referred to in subsection 1.
48.-(1) The Minister of Industry, Business
and Financial Affairs shall lay down specific
provisions concerning trade mark applications
and their examination and other processing. It
may thus be prescribed to what extent the
Patent and Trademark Office on its own
initiative shall ensure whether the conditions
of registration of the trade mark are fulfilled.
The Minister of Industry, Business and
Financial Affairs shall, furthermore, lay down
provisions concerning the division of
applications and registrations, concerning the
examination of oppositions and administrative
revocation, concerning claims of priority, cf.
sections 18 and 19, concerning the
registration and deletion of trade marks, and
concerning the handling of cases,
notifications, extracts from the Register, etc.
(2) The Minister of Industry, Business and
Financial Affairs shall lay down specific
provisions concerning the arrangement and
keeping of the Register, concerning the
information which may be entered in the
Register and concerning the publication of
registrations, etc.
(3) The Minister of Industry, Business and
Financial Affairs may lay down rules
concerning the payment for special
14
transactions, publications, transcripts, courses,
etc.
(4) The Minister of Industry, Business and
Financial Affairs shall lay down the
provisions necessary for the application of the
Regulation on the Community trade mark,
including provisions concerning the
conversion of Community trade mark
applications and registrations to national
applications and concerning the handling of
cases, notifications, etc.
(5) For the division of applications and
registrations and for notifications a fee shall
be paid. For the examination and other
processing of cases concerning Community
trade marks a fee shall be paid.
(6) The Minister of Industry, Business and
Financial Affairs may lay down specific rules
concerning the days on which the Patent and
Trademark Office shall be closed.
49.- If the Minister of Industry, Business and
Financial Affairs refers his or her rights under
this Act to the Patent and Trademark Office,
the Minister may lay down rules concerning
the right of appeal including rules to the effect
that appeals may not be brought before any
higher administrative authority.
Part 8
International trade mark registration
50.- An international trade mark registration
means a registration under the Agreement
adopted at Madrid on 14 April 1891
concerning the International Registration of
Marks, as subsequently revised (the Madrid
Agreement) or under the Protocol relating to
the Madrid Agreement (the Protocol) adopted
at Madrid on 27 June 1989.
Effects of an international registration
51.- From the date of registration or from the
date of a subsequent designation an
international trade mark registration
designating Denmark shall have the same
legal effect as if the trade mark had been
registered in Denmark.
Refusal
52.- If the trade mark does not comply with
the conditions of registration under this Act,
or if an opposition is filed, the Patent and
Trademark Office may, within the time limit
laid down in the Madrid Agreement or the
Protocol, notify the International Bureau of
the entire or partial refusal of the protection of
the trade mark in Denmark.
Lapse and proceeding under Danish law
53.-(1) If the international trade mark
registration is invalidated, its validity shall
also lapse in Denmark from the date of the
lapse of the international registration.
(2) If the international registration is cancelled
pursuant to the Protocol at the request of the
Office of origin or in consequence of a
Contracting Party denouncing the Protocol,
the proprietor may file a Danish trade mark
application with the same effect as if the
application had been filed on the date of filing
of the application for the international
registration or the date of a subsequent
designation, provided that
(i) the application is filed within three
months from the date of the
cancellation,
(ii) the application does not comprise other
goods or services than the international
trade mark registration and
(iii) the application, moreover, complies
with the requirements of a Danish trade
mark application, and the applicant pays
the prescribed fees.
15
Prohibition against simultaneous
protection
54.-(1) In the cases where a trade mark
registered in Denmark is also, at the request
of the proprietor of the trade mark, the subject
of an international trade mark registration, the
international trade mark registration shall
replace the Danish registration, provided that
(i) Denmark is designated either originally
or subsequently,
(ii) the goods or services comprised by the
Danish registration are also comprised
by the international registration and
(iii) Denmark is designated at a later date
than the date of the application for the
Danish registration.
(2) The Patent and Trademark Office shall on
request enter the existence of an international
trade mark registration in its Register.
Application for an international trade
mark registration on the basis of an
application or registration in Denmark
55.- An international trade mark application
may be filed by Danish nationals and natural
persons or legal entities having their residence
in Denmark or being owners of a real and
effective industrial or commercial enterprise
in Denmark.
56.- International trade mark applications
based on an application or a registration in
Denmark shall be filed with the Patent and
Trademark Office in accordance with the
provisions laid down by the Minister of
Industry, Business and Financial Affairs, cf.
section 60.
57.- An international application may only
comprise the goods or services comprised by
the Danish application or registration.
58.- At the filing an international trade mark
application priority may be claimed pursuant
to the Paris Convention.
Renewal, etc.
59.- The rules laid down in the Madrid
Agreement and the Protocol shall apply to
renewal.
60.-(1) The Minister of Industry, Business
and Financial Affairs shall lay down specific
rules for the implementation of the provisions
of this Part of the Act. Special rules may thus
be laid down concerning the publication of
the internationally registered trade marks, cf.
section 51, and concerning the filing of
oppositions thereagainst, cf. section 52.
(2) For the examination and other processing
of cases concerning international trade mark
registration a fee shall be paid.
Part 8 A
Fees
60a.-(1) For an application for the registration
of a trade mark a fee of 2,350 DKK shall be
paid, cf. section 12(2). Furthermore, an
additional fee of 600 DKK shall be paid for
each class under the Nice Agreement of 1957
Concerning the International Classification of
Goods and Services (the Nice Classification)
in excess of the first three classes.
(2) For the conversion of a Community trade
mark application or registration to a national
application, cf. section 48(5), the fees referred
to in subsection 1 shall be paid.
(3) For an application for a Danish trade mark
registration on the basis of a cancelled
international trade mark registration a fee of
1,500 DKK shall be paid, cf. section
53(2)(iii).
16
(4) The fee for the designation of Denmark in
an international trade mark registration under
Article 7(1) of the Protocol of 27 June 1989
relating to the Madrid Agreement Concerning
the International Registration of Marks (the
Madrid Protocol (1989)) shall be calculated as
referred to in subsection 1.
60b.-(1) For the renewal of a trade mark
registration a fee of 2,350 DKK shall be paid,
cf. section 27(1). Furthermore, an additional
fee of 600 DKK shall be paid for each class
under the Nice Classification in excess of
three classes.
(2) Fees pursuant to subsection 1 paid after
the expiry of the registration period and up to
six months thereafter shall be increased by 20
per cent.
(3) The fee under Article 8(7) of the Madrid
Protocol for the renewal of the designation of
Denmark in an international trade mark
registration shall be calculated as referred to
in subsection 1.
60c.-(1) For the filing of an opposition
against the validity of a Danish or
international trade mark registration a fee of
2,500 DKK shall be paid, cf. section 23(1)
and section 60.
(2) For a request for administrative revocation
of a Danish or international trade mark
registration a fee of 2,500 DKK shall be paid,
cf. section 30(1) and section 60.
(3) For an opposition, cf. subsection 1, or a
request for administrative revocation, cf.
subsection 2, filed exclusively on the ground
that the registration has been effected in
contravention of section 14(i) or (iii) no fee
shall be paid.
60d.-(1) For a request for the division of a
trade mark application or registration a fee of
2,000 DKK shall be paid for each application
or registration which is to be divided out, cf.
section 48(5).
(2) For the notification of the proprietor of a
Danish trade mark right or an international
trade mark right with effect in Denmark an
fee of 1,000 DKK shall be paid per year, cf.
section 48(5).
(3) 8)
For a written advisory opinion pursuant
to section 45b(2) a fee of 1,500 DKK shall be
paid.
60e.-(1) For the handling by the Patent and
Trademark Office of cases concerning
applications for Community trade marks a fee
of 200 DKK shall be paid, f. section 48(5).
(2) For the handling by the Patent and
Trademark Office of cases concerning
applications for international trade mark
registration a fee of 500 DKK shall be paid,
cf. section 60(2).
(3) For the handling by the Patent and
Trademark Office of cases concerning
subsequent designation in international trade
mark registrations a fee of 300 DKK shall be
paid, cf. section 60(2).
60f.-(1) Fees paid pursuant to sections 60a to
60e shall not be refunded when the payment
has been effected in due time.
(2) Fees not paid in due time or paid in
insufficient amounts at the expiry of the time
limit resulting in non-acceptance of the
payment shall be refunded.
(3) If the Patent and Trademark Office rejects
the examination and other processing paid for,
fees paid in connection with the examination
and other processing shall be refunded.
(4) Fees paid in connection with the filing of
an opposition against or a request for the
revocation of a trade mark registration shall
__________
17
be refunded with half of the amount paid in
the cases where the examination of the
opposition or the request for revocation is
suspended and the trade mark registration is
revoked.
60g.-(1) The fees referred to in sections 60a to
60e are stated at the 2011-level.
(2) The Patent and Trademark Office may
adjust the amounts stated in sections 60a to
60e in accordance with the general price and
wage development used for the purposes of
the Government Budget. The Patent and
Trademark Office shall publish the current
fees in a price list.
60h. 9)
The Patent and Trademark Office may
transfer income from fees charged under this
Act to the payment of costs involved in the
administration by the Patent and Trademark
Office of other fields under the jurisdiction of
the Office where fees are charged.
Part 9
Provisions as to entry into force and
transitional provisions
61.-(1) This Act shall enter into force on 1
January 1992, and at the same time the Trade
Marks Act, cf. Consolidate Act No. 249 of 17
April 1989, shall be repealed.
(2) (Transitional provision, not reproduced).
(3) With respect to trade marks which are
registered prior to 31 December 1991, the
five-year period under section 25 shall not
commence until 1 January 1992.
(4) 10)
The provisions of Part 8 shall be put
into force in full or in part by an Order to be
issued by the Minister of Industry, Business
and Financial Affairs.
62.- Applications which at the entry into force
of this Act have not been published in
accordance with the previous provisions shall
be examined and processed pursuant to the
provisions of this Act.
63.- 11)
This Act shall not apply to the Faeroe
Islands and Greenland, but may by Royal
Ordinance be put into force for the Faeroe
Islands and Greenland with such deviations as
the special Faeroese and Greenland
circumstances may require.
Act No. 1548 of 13 December 2016
(Increased efforts against counterfeiting and
piracy by establishing a special unit on
enforcement and counterfeiting and piracy
and transfer of income from fees) 12)
contains
the following provision as to entry into force:
Section 7
This Act shall enter into force on 1 January
2017.
The Ministry of Industry, Business and Financial Affairs, 26 February 2017
BRIAN MIKKELSEN
/Jesper Kongstad
18
2) This Consolidate Act contains information about provisions as to entry into force and transitional provisions adopted
during the sessional year 2016/2017 of the Danish Parliament (the Folketing). Provisions as to entry into force and
transitional provisions for previously adopted amendments of the Trade Marks Act are laid down in Consolidate Act
No. 192 of 1 March 2016. The amendments indicated below in consequence of Act No. 1548 of 13 December 2016 to
Amend the Trade Marks Act and various other Acts shall not apply to the Faeroe Islands and Greenland, but may by
Royal Ordinance be put into force in whole or in part for the Faeroe Islands and Greenland with such deviations as
the circumstances of the Faeroe Islands and Greenland may require. 3)
The Regulation on the Community trade mark was amended by EU Regulation No. 2015/2424 of the European
Parliament and of the Council of 16 December 2015. In that connection the term Community trade mark was changed
to the term EU trade mark. In this Consolidate Act the terminology and specific references to Articles have not been
updated in relation to the amended Regulation. 4)
The Regulation on the Community trade mark was amended by EU Regulation No. 2015/2424 of the European
Parliament and of the Council of 16 December 2015. In that connection the term Community trade mark was changed
to the term EU trade mark. In this Consolidate Act the terminology and specific references to Articles have not been
updated in relation to the amended Regulation. 5)
The Regulation on the Community trade mark was amended by EU Regulation No. 2015/2424 of the European
Parliament and of the Council of 16 December 2015. In that connection the term Community trade mark was changed
to the term EU trade mark. In this Consolidate Act the terminology and specific references to Articles have not been
updated in relation to the amended Regulation. 6)
The Regulation on the Community trade mark was amended by EU Regulation No. 2015/2424 of the European
Parliament and of the Council of 16 December 2015. In that connection the term Community trade mark was changed
to the term EU trade mark. In this Consolidate Act the terminology and specific references to Articles have not been
updated in relation to the amended Regulation. 7)
Section 45b was inserted by Act No. 1548 of 13 December 2016, which entered into force on 1 January 2017. 8)
Section 60d(3) was inserted by Act No. 1548 of 13 December 2016, which entered into force on 1 January 2017. 9)
Section 60h was inserted by Act No. 1548 of 13 December 2016, which entered into force on 1 January 2017. 10)
Part 8 entered into force on 1 April 1996 by Order No. 131 of 15 March 1996. 11)
The Trade Marks Act No. 341 of 6 June 1991 was put into force for Greenland on 1 January 1992 by Royal
Ordinance No. 856 of 16 December 1991 and for the Faeroe Islands on 1 June 1994 by Royal Ordinance No. 331 of 4
May 1994. A number of subsequent amendments of the Trade Marks Act were put into force for Greenland on 1 July
2010 by Royal Ordinance No. 655 of 11 June 2010 and on 1 February 2013 by Royal Ordinance No. 48 of 18 January
2013. Part 8 of this Act was put into force for Greenland on 11 January 2011 by Order No. 1327 of 3 December 2010.
A number of subsequent amendments of the Trade Marks Act were put into force for the Faeroe Islands on 2 May
2015 by Royal Ordinance No. 483 of 20 April 2015. Part 8 of this Act was put into force for the Faeroe Islands on 13
April 2016 by Order No. 143 of 25 February 2016. 12)
The amendment of this Act relates to section 45b, section 60d(3) and section 60h.