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The Consolidate Trade Marks Act (Consolidate Act No. 223 of February 26, 2017)

 The Consolidate Trademarks Act (Consolidate Act No. 223 of February 26, 2017)

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

2

(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.

3

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

4

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

5

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

6

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

7

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

8

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.

9

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.

10

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

11

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.