Copyright

Copyright is mainly governed by the Danish Copyright Act (Consolidated Act on Copyright No. 1093 of 20 August 2023 with later amendments), which contains rules on exclusive rights, exceptions and limitations to copyright, rules on copyright agreements, etc. This act is supplemented by many executive orders which concern topics such as the effect of the Copyright Act on non-EEA right holders and the procedural rules for the Danish Copyright Tribunal.

Danish copyright law is harmonised to a very large degree with EU copyright law, which consists of a large amount of directives, regulations and court cases from the European Court of Justice.

Trade Marks

Trade marks are governed mainly by the Danish Trade Mark Act (No. 88 of 29 January 2019).

Danish trade mark law also applies in the Faroe Islands and Greenland. The new Trade Mark Act (from 2019) came into force in Greenland through a Royal Decree on 1 September 2022. The new Trade Mark Act is expected to come into force in the Faroe Islands through a Royal Decree at a later point.

In addition, other legislative acts, such as the Danish Marketing Practice Act (No. 426 of 3 May 2017 with later amendments), are supplementing the Trade Mark Act.

In Denmark, trade mark protection can be obtained either by registration or through commencement of use of the mark in the Danish market. An unregistered trade mark right may be established for the goods or services for which the trade mark is continuously used, when the extent of the use has more than mere local significance. A trade mark right regarding a mark which is devoid of distinctive character at the time of commencement of use shall only be established when and if distinctive character is acquired through use of the mark.

Copyright

Denmark is a signatory to WIPO treaties relating to copyright, and the Copyright Act reflects many of the principles and provisions of these treaties. However, as mentioned in 1.1 Governing Law, Danish copyright law is now harmonised with EU copyright law to a very large degree. A number of newer court cases and opinions from the European Court of Justice have indicated that the freedom of the member states with regard to entering new copyright treaties, making reservations, etc is limited, eg, see C-265/19 (RAAP), Opinion 3/15 (Marrakech) and C-227/23 (Kwantum Nederland).

The main provisions governing foreign copyright holders in Denmark can be found in Sections 87 and 88 of the Copyright Act and the Executive Order on the Application of the Copyright Act in Relation to Other Countries (No. 218 of 9 March 2010 with later amendments).

Trade Marks

Trade mark conventions and treaties

In connection with trade marks, Denmark is party to the following international treaties and conventions:

• Paris Convention for the Protection of Industrial Property (as amended on 28 September 1979)
• WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (1994)
• Nice Agreement (in force from 1961)
• Madrid Protocol (in force from 1996)
• Trademark Law Treaty (in force from 1998)
• Singapore Treaty on the Law of Trademarks (in force from 2009)

Rights of foreign trade mark holders

The trade mark rights of foreign trade mark holders are governed by the Trade Mark Act. See also under “Protection of Foreign Trade Marks” in 2.1 Types of Trade Marks.

In Denmark, the following kinds of trade marks are registrable: individual trade marks, guarantee or certification marks, and collective marks. Service marks are categorised as individual trade marks.

Surnames may be protected as trade marks provided that they fulfil the requirements for trade mark protection. However, a trade mark may be excluded from registration if it consists of or contains a rare surname (ie, fewer than approximately 30 persons hold the specific surname). The holder of the rare surname is required to assert this right by filing an opposition to the registration of the trade mark.

Industrial designs may be protected as trade marks if they fulfil the requirements for trade mark protection, for instance, in terms of the required distinctive character.

Types of Marks

The following may be protected as trade marks (provided that the general requirements for protection are fulfilled):

• word marks;
• figurative marks;
• shape marks;
• position marks;
• pattern marks;
• colour (per se) marks;
• sound marks;
• motion marks;
• multimedia marks; and
• hologram marks.

These types of marks may be registered if they can be represented in the trade mark register in a clear, precise, independent, easily accessible, understandable, durable and objective manner and if they are capable of distinguishing the goods or services of one undertaking from those of other undertakings.

Protection for Specific Marks

In Denmark, certain specific marks, eg, the Crown of the Danish royal family, are protected by specific rules.

Protection of Foreign Trade Marks

Foreign trade marks that are not in use or registered in Denmark may still be able to hinder the registration of a confusingly similar mark in Denmark provided that the foreign trade mark is used and protected abroad and provided that the application in Denmark was filed in bad faith.

In addition, well-known foreign trade marks are also protected in Denmark provided that these trade marks are considered well known in Denmark within the meaning of Article 6bis of the Paris Convention.

Elements Required to Qualify for Trade Mark Protection

In order for a trade mark to be protected in Denmark, it must be distinctive and not descriptive in terms of the goods and services applied or used for.

In order to be registered, the trade mark cannot be misleading or be contrary to law, public order or morality.

Acquired Distinctiveness

A trade mark that lacks inherent distinctiveness may acquire distinctiveness through use. This acquired distinctiveness must be documented. All relevant material can be used for this, including invoices, advertising and promotional material, brochures and market surveys. Also, declarations from relevant industry associations stating that a specific mark has acquired distinctiveness in the market through use may be used in certain circumstances.

The material primarily must show:

• that the mark has been used as a trade mark;
• which goods/services the mark has been used for; and
• when the mark has been used.

When assessing whether a mark has acquired distinctiveness through use, factors such as the character of the mark, the intensity and length of the use and the nature of the specific goods or services will be taken into account.

It follows from the Trade Mark Act that obtaining a trade mark right confers on the proprietor exclusive rights.

Namely, the proprietor of a trade mark right shall be entitled to prevent all third parties not having consent from using in the course of trade, in relation to goods or services, any sign which is confusingly similar to the trade mark or, if the trade mark is reputed, constitutes an infringement to the reputation or distinctiveness of the trade mark.

If the trade mark is registered, the trade mark rights granted to the proprietor persist throughout the term of a registration provided that the proprietor is able to maintain the registration (for instance, proving genuine use of the mark once the use requirements are applicable).

If the trade mark is established through use, the trade mark rights persist as long as the trade mark continues to be in use.

The Trade Mark Act only applies in relation to use in the course of trade.

Whether a specific use is made in the course of trade will depend on several factors, including whether the use takes place in the context of commercial activity with a view to economic advantage and not as a private matter.

According to the Trade Mark Act, there are certain limitations to the exclusive rights afforded to trade mark owners. For instance, a trade mark cannot prevent a third party from using, in the course of trade, signs or indications which are not distinctive or which concern the kind, quality, quantity, intended purpose, value, geographical origin, time of production of goods or of rendering of the service, or other characteristics of goods or services.

Thus, to be able to prevent a third party’s use of an identical or similar sign in the course of trade, it is necessary to establish that this has been used as a trade mark.

In Denmark, it is possible to use the symbols TM to indicate that a certain mark is a trade mark and ® if the mark is registered, but this is not a requirement.

The symbols must not be used in a misleading way, ie, the symbol ® may only be used if the mark is registered.

In terms of trade mark notices regarding ownership, these are not required in Denmark.

In principle, a trade mark (for instance, a logo or a sound mark) may also be protected under copyright provided that the mark meets the requirements regarding originality etc.

Pursuant to Section 1(1) of the Copyright Act, a person who creates a literary or artistic work holds the copyright to the work. The Copyright Act does not further specify the different categories of works which are protected, but some categories are mentioned in other provisions, eg, that computer programs are considered literary works, cf. Section 1(3). Compilations of works (or parts thereof) can be protected pursuant to Section 5.

Industrial designs can be protected by copyright provided that the requirements for copyright protection are met.

The Copyright Act does not explicitly outline the requirements for obtaining copyright protection. Traditionally, it has been required that (a) the relevant product is considered “artistic” or “literary” and (b) the product is “original”, ie, the work must be the result of the author’s “personal creative effort”. Recently, a number of court cases from the European Court of Justice have shed more light on what is required for obtaining copyright protection in the EU, eg, the concept of “work” is “an autonomous concept of EU law which must be interpreted and applied uniformly, requiring two cumulative conditions to be satisfied. First, that concept entails that there exists an original subject matter, in the sense of being the author’s own intellectual creation. Second, classification as a work is reserved to the elements that are the expression of such creation,” cf. C-683/17 (Cofemel).

There is no definition of “author” in the Copyright Act. Copyright is granted to the person or persons who create the work.

The Copyright Act does not contain a general provision on “work-for-hire”, but Section 59 states that “the copyright in a computer program created by an employee in the course of their duties or following the instructions of the employer shall vest in the employer”. In other cases, copyright can be transferred or licensed by agreement, eg, employment agreements.

While not explicitly mentioned in the Copyright Act, it is usually understood that copyright is granted to (human) persons, ie, animals cannot be granted copyright. There are currently no Danish court cases regarding the use of artificial intelligence in the creation of content.

With regard to joint authorship, Section 6 of the Copyright Code states: “If a work has two or more authors, and their individual contributions cannot be separated as independent works, they shall hold the copyright jointly. However, each of them may take action against infringements.” This normally means that one of the authors cannot use the work without the permission of the other authors. The Copyright Act does not determine the specific ownership percentages of the authors in question.

Copyright owners are granted different exclusive rights, which are well known from international copyright legislation, eg, the rights to reproduction, communication to the public and distribution of works. The rights are outlined in the Copyright Act, namely Section 2. The rights persist throughout the term of a copyright.

The moral rights are outlined in Section 3 of the Copyright Act, which requires that:

• the author has the right to be credited in accordance with good practice; and
• the work may not be altered or made available to the public in a manner or context that is prejudicial to the author’s literary or artistic reputation or integrity.

The moral rights persist even after the term of the copyright in accordance with Section 75 of the Copyright Act, however, only with regard to uses that infringe “cultural interests”. This provision is only very rarely used.

Pursuant to Section 63 of the Copyright Act, the standard term of protection is 70 years after the year of death of the author, but special rules may apply, eg, for audiovisual or musical works.

Section 54(1) of the Copyright Act contains an obligation to exploit the rights that have been assigned. The author may terminate an agreement granting exclusive rights with six months’ notice, if exploitation has not commenced within a reasonable time after the author has fulfilled their obligations under the agreement. However, this shall not apply if exploitation is commenced before the end of the notice period.

Denmark has a long-standing tradition of using collective management of rights as part of the copyright system. Collective management organisations are in place for different categories of works and other protected subject matter, eg, in areas such as music, text and visual arts. The list can be found (in Danish) on Forvaltningsorganisationer.The collective management organisations are structured differently and perform different tasks. Most collective management organisations receive mandates from their members, but some organisations are approved by the Danish Ministry of Culture to perform certain tasks, eg, handling compensation for private copying.

The main piece of legislation is the Danish Act on Collective Management of Right (No. 321 of 5 April 2016 with later amendments), which contains most of the rules in Directive 2014/26/EU of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market. In addition, the Copyright Act contains rules which are relevant for the functioning of collective management organisations, eg, rules on the fees and terms of the licences of these organisations.

There is no copyright registration system in Denmark, and no formalities, such as notices or symbols, are required to obtain copyright.

There is no copyright registration system in Denmark, and no formalities, such as notices or symbols, are required to obtain copyright.

There is no copyright registration system in Denmark, and no formalities, such as notices or symbols, are required to obtain copyright.

A product which is protected by copyright can also be protected by other rights, eg, trade marks or related rights, provided that the requirements for protection are met.

The Copyright Act contains a detailed set of provisions outlining the scope and requirements for obtaining related rights. The protection is in many cases similar to the protection of copyright, but in other cases it might be different, eg, with regard to requirements for protection, term of protection, etc.

A creative product, eg, a song, can thus be protected by both copyright (eg, lyrics and composition) and related rights (eg, the performance of the work and the sound recording) at the same time.

Establishment of Trade Mark Rights

In Denmark, trade mark protection can be obtained either by registration or through commencement of use of the mark in the Danish market. An unregistered trade mark right may be established for the goods or services for which the trade mark is continuously used, when the extent of the use has more than mere local significance. A trade mark right regarding a mark which is devoid of distinctive character at the time of commencement of use shall only be established when and if distinctive character is acquired through use of the mark.

A trade mark right established through use affords the same rights as a registered trade mark right. However, to enforce such right, the establishment of the right needs to be documented and the right only persists as long as the mark is continuously used. Thus, in practice, there are some benefits connected with registering a trade mark compared to relying on a trade mark right based on use.

The standards for registering different types of marks are in principle the same. However, from case law it follows that for non-traditional marks, such as shape marks, the average consumers are not in the habit of making assumptions about the origin of products on the basis of, for instance, their shape. Therefore, for certain types of marks it may be more difficult to establish distinctiveness.

In addition, it should be noted that some trade marks are excluded completely from registration (these marks cannot acquire distinctiveness through use), namely, trade marks which consist exclusively of:

• a shape, or another characteristic, which results from the nature of the goods themselves;
• a shape, or another characteristic, of goods which is necessary to obtain a technical result; or
• a shape, or another characteristic, which gives substantial value to the goods.

In Denmark, there is a trade mark register. The online publicly available trade mark database contains Danish national trade mark applications and registrations and international registrations designating Denmark. The EU trade marks which are also valid in Denmark (but not in Greenland and the Faroe Islands) may be found in the EUIPO online publicly available trade mark database.

Searches for Prior Rights

Whether or not to perform a search for prior trade marks before applying to register a mark will depend on the risk profile of the applicant.

If a search is conducted, this could be done using the Danish trade mark database and the EUIPO database or the general trade mark database TMview. Further supplemental searches, for instance in the Danish Company Register and general internet searches, may also be performed.

A Danish trade mark registration is valid for ten years from the application date. A Danish registration is renewable for periods of ten years.

For trade marks registered before the new Trade Mark Act, namely before 1 January 2019, the starting date is still the date when the registration became final. For subsequent ten-year periods, the time limit for renewals will run from the date of the expiration of the preceding period.

Late Renewal

A trade mark owner may renew a trade mark registration six months after the expiration date upon paying an increased renewal fee.

There are no formal requirements regarding continued use in commerce or similar in connection with the renewal.

Once the trade mark registration has lapsed, it cannot be revived.

The application for registration of a trade mark in Denmark has to be filed with the Danish Patent and Trademark Office.

As a minimum and in order to receive an application date, the application has to contain the following:

• the applicant’s name or company and address;
• a representation of the mark which is applied for; and
• reference to the goods and services which the mark is applied for.

Multi-class applications are allowed in Denmark.

No further materials, such as specimen of use, date of first use in commerce or creation in commerce, or sworn declaration of accuracy, are required.

Fees

The official fee for filing a trade mark application in Denmark is DKK2,000 for the first class. The fee is DKK200 for the second class and DKK600 for each additional class. There is no registration or publication fee.

Who Can Register a Trade Mark?

Everyone, eg, individuals, legal entities and trade bodies, can register a trade mark in Denmark.

There is no requirement for foreign applicants to appoint a local agent. However, it should be noted that at time of writing, the list of goods and services must be provided in Danish.

There are no requirements in Denmark that the mark has to be used in commerce before the registration is issued.

Genuine Use

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 Denmark in connection with the goods or services in respect of which it is registered, or if such use has been suspended for an uninterrupted period of five years, the registration may be revoked, unless there are proper reasons for non-use.

The assessment of genuine use involves various factors, and a case-by-case assessment must be conducted as to what constitutes genuine use.

In general, genuine use is required in connection with the goods or services in respect of which the mark has been registered. Furthermore, use of a trade mark with the consent of the proprietor shall be deemed to constitute use of the trade mark by the proprietor.

In addition, the following shall also constitute use:

• use of the trade mark in a form differing in elements which do not alter the distinctive character of the mark in the form in which it was registered, or when the trade mark has been acquired through use, the form to which the trade mark right was originally connected, regardless of whether or not the trade mark in the form as used is also registered in the name of the proprietor; and
• affixing the trade mark to goods or to the packaging thereof in Denmark solely for export purposes.

The Danish Patent and Trademark Office provides an informative search for similar prior applied or registered trade marks. These similar prior applied or registered trade marks do not bar registration but can be used by the owner of the prior right as a basis for filing an opposition or cancellation action.

It is possible to change an application for a trade mark during the application and registration process. However, it is not possible to extend the scope of the application in terms of the list of goods and services. Specification can be made if such are within the original applied scope.

In terms of alterations of the mark, only minor, insignificant changes may be made.

It is possible to divide a Danish trade mark application or registration.

A division of a trade mark application or registration may concern either entire classes or only individual goods or services in one or more classes.

The requirement for the Danish Patent and Trademark Office to accept a request for division is that it is clear which goods and services the marks cover after the division. Thus, for instance, it is not possible that the same or overlapping goods and services are covered by both the original application or registration and the divided application or registration.

If a division of a trade mark application or registration is desired, a request must be sent to the Danish Patent and Trademark Office. An official fee will have to be paid in this respect.

Division of trade mark applications or registrations is made with reference to various reasons, for instance, partial refusals, potential partial assignments of the trade mark, etc.

If incorrect information has been provided by mistake, it should be possible to correct such mistakes.

However, if a trade mark application has been restricted or withdrawn, it will typically not be possible to reverse such actions.

A trade mark may be refused registration on the basis of absolute grounds.

“Absolute grounds” means that a trade mark cannot be registered if it (among others):

• cannot constitute a trade mark;
• lacks distinctive character and/or is descriptive;
• is liable to deceive the public, for instance, as to the nature, quality or geographical origin of the goods or service;

• is contrary to law;
• is a sign which consists exclusively of a shape, or another characteristic, which results from the nature of the goods themselves; a shape, or another characteristic, of goods which is necessary to obtain a technical result; or a shape, or another characteristic, which gives substantial value to the goods;
• is contrary to Article 6ter of the Paris Convention;
• is contrary to public policy; or
• was made in bad faith by the applicant.

It is possible to file observations in reply to a provisional refusal based on absolute grounds in which it is argued that the applied marks should be registered.

It is also possible, for instance, to restrict the application in order to overcome the provisional refusal or to submit evidence which shows that the mark has acquired distinctiveness, if relevant (see also under “Acquired Distinctiveness” in 2.2 Essential Elements of Trade Mark Protection).

Denmark is a party to the Madrid Protocol. Similar requirements for registration apply for international registrations as for national applications. However, the list of goods and services does not need to be filed in Danish for international registrations.

Furthermore, there are certain obligations for the Danish Patent and Trademark Office in connection with international registrations; for instance, the Office is required to process the designation of Denmark within 18 months from the notification date.

Who May File Oppositions?

Oppositions may only be filed on the basis of prior rights. Therefore, only the holder of the prior right in question may file an opposition. However, the holder may authorise others to file the opposition.

The Opposition Deadline

The opposition deadline of two months from publication may not be extended.

The opponent may file the formal opposition and request a further deadline to substantiate the opposition.

It is possible to have the opposition proceedings suspended based on negotiations regarding an amicable settlement, if the parties agree to such suspension.

Revocation and Cancellation Actions

Revocation or cancellation actions may be made at any point in time after the mark has been registered.

For cases concerning genuine use of the registered trade mark, the request can be made no earlier than five years after registration of the contested trade mark in accordance with the rules on genuine use (see under “Genuine Use” in 4.5 Use in Commerce Prior to Registration).

Oppositions may only be filed on the basis of prior rights (relative grounds). “Relative grounds” means that a trade mark cannot be registered if there are similar or identical earlier rights which may prevent this.

Cancellation actions may be filed on the basis of both relative grounds (see above) and absolute grounds. “Absolute grounds” means that a trade mark cannot be registered if it (among others):

• cannot constitute a trade mark;
• lacks distinctive character and/or is descriptive;
• is liable to deceive the public, for instance, as to the nature, quality or geographical origin of the goods or service;

• is contrary to law;
• is a sign which consists exclusively of a shape, or another characteristic, which results from the nature of the goods themselves; a shape, or another characteristic, of goods which is necessary to obtain a technical result; or a shape, or another characteristic, which gives substantial value to the goods;

• is contrary to Article 6ter of the Paris Convention;
• is contrary to public policy; or
• was made in bad faith by the applicant.

In addition, cancellation actions may also be filed on the following grounds:

• non-use of the trade mark; and
• degeneration of the trade mark.

Expungement or Re-Examination Procedure

It is possible to appeal a decision issued in an opposition or cancellation matter and thus have the case re-examined by the Danish Appeal Board (Ankenævnet for Patenter og Varemærker).

Oppositions

Oppositions may only be filed on the basis of prior rights. Therefore, only the holder of the prior right in question may file an opposition. However, the holder may authorise others to file the opposition.

Representation in oppositions is not required.

The official fee for filing an opposition is DKK2,500. The average fee for having assistance from an attorney will vary and depend on various factors such as the complexity of the matter, the lengths of the proceedings, etc.

Cancellation Actions

Everyone may request that a trade mark registration be cancelled. A legal or commercial interest in the matter is not required. However, a request cannot be made anonymously. If the cancellation is based on prior rights, only the holder of the prior right in question may file the cancellation action.

Opposition Procedures

Opposition has to be filed within the opposition period, which is the two months that follow the publication of the trade mark.

Once the mark has been opposed, the applicant will be notified of the opposition and given the opportunity to comment. Once the Danish Patent and Trademark Office has received the applicant’s comment, the Office will assess whether a decision can be made or whether there is a need for further clarification of the matter.

Typically, further rounds of observations are required depending on the claims made in the opposition, for instance, if claims have been made in connection with reputed trade marks or lack of genuine use of the opponent’s mark.

The opposition proceedings are conducted in writing.

Cancellation/Revocation Procedures

Cancellation actions are typically filed with the Danish Patent and Trademark Office.

It is also possible to have trade mark registrations cancelled through filing a matter with the Danish courts.

Partial revocation/cancellation is possible in case the grounds invoked in the proceedings are only relevant and enforceable for part of the trade mark registration.

It is possible to file an appeal against the decision of the Danish Patent and Trademark Office. An appeal is filed with the Danish Appeal Board (or, depending on the circumstances, directly with the Maritime and Commercial Court).

Only final decisions by the Danish Patent and Trademark Office may be appealed.

An appeal will often be decided by the Danish Appeal Board within 12 months from the filing of the appeal.

No content provided in this jurisdiction.

Actions involving revocation/cancellation and infringement can be brought and heard together only before the Danish courts (Maritime and Commercial Court).

A trade mark application which has been filed in bad faith may be cancelled (see 5.2 Legal Grounds for Filing an Opposition or Cancellation).

If the Danish Patent and Trademark Office finds that a trade mark registration has been filed in bad faith, the trade mark registration will be cancelled.

Copyright

A right holder in general has a large degree of flexibility with regard to assignment of rights. There are no specific formal requirements, such as that the agreement must be in writing.

Such agreements are governed by general contract law and in addition by a number of provisions in the Copyright Act.

Pursuant to Section 53(1), the author may assign their rights under the Copyright Act in whole or in part (with a few limitations). Section 53(3) states that where the author has granted a right to exploit the work in a specific way or by specific means, such grant shall not entitle the transferee to exploit the work in other ways or by other means. Upon death, copyright is assigned to heirs (or others) in accordance with the Danish law of succession, cf. Section 61 of the Copyright Act.

The Copyright Act includes several other provisions that apply to agreements, such as rules on transparency, additional remuneration, revocation of rights, etc.

Trade Marks

It is possible to assign registered trade marks. It is not a condition for the validity of the transfer that it is recorded in the Danish trade mark register.

The assignment may be recorded in the register upon request. The request will need to be supplemented by documentation for the assignment.

Partial assignments are possible.

Trade marks are transmissible upon death (when owned by a natural person).

Copyright

A right holder in general has a large degree of flexibility with regard to assignment of rights. There are no specific formal requirements, eg, that the agreement must be in writing.

Such agreements are governed by general contract law and in addition by several provisions in the Copyright Act.

Pursuant to Section 53(1), the author may assign their rights under the Copyright Act in whole or in part (with a few limitations). Section 53(3) states that where the author has granted a right to exploit the work in a specific way or by specific means, such grant shall not entitle the transferee to exploit the work in other ways or by other means. Upon death, copyright is assigned to heirs (or others) in accordance with the Danish law of succession, cf. Section 61 of the Copyright Act.

The Copyright Act includes several other provisions that apply to agreements, such as rules on transparency, additional remuneration, revocation of rights, etc.

Trade Marks

A trade mark licence agreement may be concluded orally or in writing.

It is possible to have the licence recorded in the trade mark register upon request. The request will need to be supplemented by documentation for the licence. Recordal in the register is voluntary.

A licence may be exclusive or non-exclusive, and it may be perpetual (however, trade mark rights will depend on the trade mark being continuously renewed). A trade mark application may be the subject of a licence agreement (but a trade mark right is subject to the application maturing into registration).

Copyright

The Danish copyright Office does not have a registration system for agreements concerning assignment or licensing of copyrights.

Trade Mark

See 6.1 Assignment Requirements and Restrictions and 6.2 Licensing Requirements or Restrictions.

Neither trade mark nor copyright law contains provisions which require claims to be brought within a specific period of time. However, claims can be time-barred in accordance with the statute of limitations, and failure to act can result in the forfeiting of claims.

The Copyright Act and Trade Mark Act each contain a chapter which describes the remedies for infringing the rights. Many of the provisions in these chapters stem from EU legislation, including the Enforcement Directive (Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights).

Remedies include damages, recall and destruction of infringing goods and penal measures such as fines or, in severe cases, imprisonment. In addition, the Danish Administration of Justice Act (Consolidated Act No. 1160 of 5 November 2024 with later amendments) contains rules on right to information, injunctions, etc.

What constitutes an infringement depends on the facts of the specific cases. The Copyright Act does not specifically address the different kinds of infringements but is broad enough to support claims relating to different kinds of infringements. In accordance with cases from the European Court of Justice, the exclusive rights can cover many different uses, including provision of an online platform where users share content protected by copyright, and linking to copyright protected content.

It constitutes trade mark infringement to use in the course of trade – and without the consent of the proprietor of a trade mark – a sign which is identical or similar to the trade mark when use is made in relation to goods or services which are identical with or similar to the goods for which the trade mark is registered/used and if there exists a likelihood of confusion on the part of the public (including the likelihood of association between the sign and the trade mark). Moreover, it constitutes trade mark infringement if – without the consent of the proprietor of a trade mark – a sign is used in the course of trade which is identical/similar to a trade mark with a reputation irrespective of whether it is used in relation to goods or services which are identical with, similar to, or not similar to, those for which the reputed trade mark is protected if use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the reputation of the trade mark.

To establish a trade mark claim it must be proven that there exists a likelihood of confusion or that use of a sign takes unfair advantage of, or is detrimental to, the distinctive character or a reputed trade mark.

Chapter 6a of the Copyright Code contains provisions on the protection of technical measures and copyright management information which right holders have employed. The rules stem from Chapter 3 of the EU Copyright and Information Society Directive (Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society), which defines “rights management information” in Article 7(2).

Copyright

The Copyright Act does not include a list of factors which must be considered in determining whether use of a copyright constitutes infringement. The courts will take into consideration all relevant facts in the situation.

Trade Marks

Finding a likelihood of confusion (trade mark infringement) presupposes the finding of similarity between the signs involved and similarity/identity between the relevant goods/services, and these factors are therefore crucial factors in determining trade mark infringement (likelihood of confusion). The protection offered to trade marks with a reputation does not require the finding of likelihood of confusion, but factors such as similarity between the signs and goods are still important factors for finding infringement of a reputed trade mark, and so is the level of reputation of a mark.

There are no formal prerequisites to filing a trade mark or copyright lawsuit, but it is common practice to contact possible infringers before any lawsuit is initiated, eg, by cease-and-desist letter, proposal for amicable solution, etc. The Copyright Act and Trade Mark Act do not include any specific provisions which restrict right holders from asserting their rights against others.

Other rules might, however, directly or indirectly limit or affect the right holders one way or another, eg, rules on marketing practice, conduct of lawyers, costs, etc.

Civil cases in Denmark are usually initiated in the civil courts, but this is not the case for many disputes relating to intellectual property rights, as the Maritime and Commercial Court has competence in most cases which concern trade marks, patents, etc. Cases relating to infringement of copyright can be brought before this court, but only in some instances, eg, cases relating to applied art or computer programs, or international cases where knowledge of international business affairs is of significant importance. The civil courts can also decide to refer a copyright case to the Maritime and Commercial Court.

The amount of costs that arise before the filing of a lawsuit depends on the specific facts of the case. It is very common that lawyers are used before a lawsuit is initiated, eg, to write letters to the possible infringer, prepare the writ of summons, etc. The parties do not need to be represented by a lawyer, unless the court finds that a party cannot conduct the case in an appropriate manner.

Non-Danish holders of trade marks or copyright can bring infringement claims in Denmark without the need for specific registration with Danish authorities, but special rules might apply to the specific facts of the case.

An alleged trade mark or copyright infringer can start declaratory judgment proceedings against a right holder.

It is not possible to file protective briefs in Denmark.

In Denmark, it is often only possible to have the court issue an injunction if the plaintiff deposits a bond (security). The size of the bond is determined on a case-by-case basis.

Denmark has a small claims procedure, but it does not specifically relate to copyright or trade marks. Most cases relating to copyright or trade marks will not fulfil the requirements for using the small claims procedure as they tend to be too complex.

Copyright

The Danish Copyright Office does not make any decisions relating to infringement.

Trade Mark

The Danish Patent and Trademark Office does not decide in infringement proceedings (eg, regarding claims for ceasing use of a sign or payment of financial compensation/damages). It decides in opposition and cancellation matters, and decisions made by the Office in such matters may indirectly have an effect on the courts’ rulings in infringement proceedings. The courts are, however, not bound by the decision made by the Office even if a dispute before the courts concerns identical marks (eg, if a party succeeds in an opposition against an application and subsequently initiates infringement proceedings with the courts to stop all use of the trade mark, the court will make its own independent assessment of whether the plaintiff is entitled to prevent use (if use constitutes a trade mark infringement)).

The Copyright and Trade Mark Acts contain a number of procedures and remedies regarding counterfeiting activities. For example, if an infringement is committed intentionally and under aggravating circumstances, the penalty may be increased to imprisonment for up to one year and six months and, in some very aggravating circumstances, up to six years.

There is also a large degree of involvement from public authorities when it comes to counterfeiting, bootlegging and similar activities. The public prosecutor and a special branch of the police handle cases relating to mass infringement of intellectual rights, eg, cases regarding the facilitating of illegal streaming services or music streaming fraud. Customs assists right holders in seizing infringing goods.

The Maritime and Commercial Court is specialised in cases regarding intellectual property. The cases will normally be handled by a judge as well as two technical judges. In some cases, the number of legal and technical judges can be increased to three and five respectively, but this does not happen in most cases.

The parties do not in general have an influence on who the judges are, but the parties have the possibility to challenge the appointment of a judge for lack of impartiality.

Copyright

Copyright cannot be registered in Denmark.

Trade Marks

A trade mark registration allows a proprietor to easily prove the existence of the right and the priority thereof, which may be highly beneficial in relation to infringement proceedings (litigation). A registration does not after a certain time become incontestable in Denmark, and it is subject to a use requirement five years from registration.

The typical cost of bringing a simple trade mark or copyright infringement action to conclusion in the first instance is in the range of DKK300,000-600,000. Factors such as legal or factual complexity, value of the case, the willingness of the parties to agree on procedural matters, etc impact the expected cost, and costs may be many times higher depending on the actual case and its specific circumstances.

It is possible to defend a claim for trade mark infringement in different ways, including the following:

• When a trade mark has been registered for five years, it becomes vulnerable to a non-use cancellation action. A registration of a mark may be obtained in bad faith, and it will in the affirmative be subject to cancellation (defence against infringement).
• A trade mark owner may have been passive for too long, and in certain situations, if the owner has acquiesced for a period of five successive years, the owner shall no longer be entitled to claim infringement.

The Copyright Act in Chapter 2 sets out a list of exceptions to the exclusive rights, including exceptions relating to parody and quotation. The list does not include general exceptions relating to fair use or freedom of speech.

In recent years, Danish courts have found that several exceptions exist outside of the Copyright Act, eg, trivial (de minimis) usage and parody (until the introduction of a parody exception in the Copyright Act in 2023).

The flexibility in creating or adjusting exceptions is limited as copyright law is in general harmonised with the EU. EU copyright legislation contains some exceptions which are mandatory for member states to implement, eg, for purposes such as preservation and text and data mining. In addition, member states can choose to include other exceptions from a closed list of possible exceptions. Many definitions and terms are subject to interpretation of the European Court of Justice, eg, “parody”, cf. C-201/13 (Deckmyn).

Copyright

The Copyright Act contains several provisions on exhaustion of rights. Section 19(1) concerns distribution, lending and rental and works with a doctrine of regional exhaustion of rights (EU/EEA); however, not with regard to lending and rental, where a principle of global exhaustion is used. Special rules relate to rental and lending, cf. Section 19(2) and (3). Section 20 concerns public display of work and states that “once a work has been published, or when a copy of an artwork has been transferred by the author to others, the published or transferred copies may be displayed publicly”.

With regard to digital content, the European Court of Justice has found that (digital) exhaustion might be relevant for computer programs, cf. C-128/11 (UsedSoft), but the opposite is the case for e-books, cf. C-263/18 (Tom Kabinet).

Trade Marks

Once goods have been put on the market in the EEA under that trade mark by the proprietor or with their consent, the proprietor will no longer be able to prohibit use of the trade mark on these goods.

Injunctions are governed by the Administration of Justice Act in combination with the Trade Mark Act and Copyright Act. These acts contain the relevant parts of the EU Enforcement Directive.

A right holder has access to different options with regard to injunctive relief. The courts have the possibility to grant preliminary injunctions provided that the right holder demonstrates or renders probable that:

• the party holds the right which is sought to be protected by the injunction or order;
• the conduct of the opposing party makes it necessary to grant the injunction or order; and
• the party’s ability to obtain their right will be forfeited if they are required to await the legal resolution of the dispute.

The courts will also assess whether the applicant is protected by other means, eg, damages or security offered by the opposing party, and whether an injunction would cause the opposing party harm or inconvenience that is clearly disproportionate. Permanent injunctions are also available for right holders.

Injunctions can also be directed at third parties, such as internet service providers, irrespective of whether these third parties are liable or not. Blocking of websites, which contain a very large amount of illegal content, can play a significant role in the enforcement strategy of right holders.

Right holders also have other options. For example, the courts can order an infringer to recall and destroy infringing goods, ie, so-called “corrective measures”.

The provisions regarding damages in both the Trade Mark Act (Section 43) and Copyright Act (Section 83) stem from Article 13 of the EU Enforcement Directive. The provisions state that a person who intentionally or negligently infringes another party’s trade mark or copyright right shall pay (1) reasonable compensation to the injured party for the use of the trade mark or copyright, and (2) damages to the injured party for any additional loss caused by the infringement, cf. Section 43(1) of the Trade Mark Act and Section 83(1) of the Copyright Act. Pursuant to the second subsection of these provisions, when determining damages under subsection 1, point 2, regard shall be had, inter alia, to the injured party’s lost profits and the infringer’s unjust enrichment.

Reasonable compensation can be based on the standard licence fee in the market or can be more loosely approximated if no such fee exists. Additional loss can, for example, be disruptions to the market, loss of sales or costs relating to investigation and securing of evidence. In many cases, the courts will award an estimated fee which covers both reasonable compensation and additional loss based on the facts of the case.

Pursuant to Section 43(3) of the Trade Mark Act and Section 83(3) of the Copyright Act, compensation may also be awarded to the injured party for non-economic damage, eg, when the moral rights of right holders are infringed.

The allocation of costs is governed by the Administration of Justice Act, cf. Chapter 30. The main rule is that “the losing party shall compensate the opposing party for the expenses incurred as a result of the legal proceedings, unless otherwise agreed by the parties”, cf. Section 312(1). As legal costs, expenses necessary for the proper conduct of the case shall be reimbursed, cf. Section 316(1). Sometimes costs associated with technical assistance might also be reimbursed.

Chapter 30 of the Administration of Justice Act provides the court with some flexibility and addresses different situations which can occur in different cases. Cases regarding copyright and trade mark rights (and other IP rights) usually result in a higher amount of costs being awarded than in other cases in Denmark. The reason for this is that these cases fall under the scope of the EU Enforcement Directive and that the European Court of Justice has interpreted this directive in a way that normally leads to higher costs, cf. C-57/15 (United Video Properties).

A holder of a trade mark or copyright can under certain circumstances seek preliminary injunctions without notice to the defendant. However, normally the court will summon the defendant to the court.

Denmark provides for customs seizures of counterfeits etc. The holder of the trade mark or copyright must make a request through the EU’s IP Enforcement Portal (IPEP). In cases where customs seizes goods and no request has been made by the right holder, customs might contact the right holder (if known), but the right holders will need to reach swiftly on such notification.

Decisions relating to trade mark or copyright infringement can in most cases be appealed to a higher court, and the procedures are usually the same as for other civil cases. This means that decisions from civil court can be appealed to the High Courts and decisions from the Maritime and Commercial Court can be appealed to the High Courts or in certain instances directly to the Supreme Court.

The time limit for appeal is four weeks. The time limit is calculated from the date of the judgment. An appeal will normally take between one and two years to be decided.

The interplay between artificial intelligence and intellectual property rights is the main emerging issue at the moment, especially in the field of copyright. The main topics are the same as in other countries, eg, who – if any – has the rights to AI outputs, the legality of using copyright protected content in training of AI services, etc. At time of writing, there are no Danish decisions or pending cases regarding AI and copyright/trade marks.

With regard to copyright, many other topics are being discussed, eg, transparency in rights agreements, the role of intermediaries, the impact of new technologies and forms of distribution, etc.

In recent years, the EU has adopted several new pieces of legislation which aim to regulate trade and services on the internet. This includes the Digital Services Act, which contains rules on liability of platforms, notice-and-takedown procedures, etc. These rules apply horizontally, ie, also to matters related to copyright and trade marks.

In addition, in 2019 the EU adopted the DSM Directive (Directive (EU) 2019/790 of 17 April 2019 on copyright and related rights in the Digital Single Market), which in Article 17 regulates the so-called providers of “online content sharing service providers”, ie, services which fall under the definition in Article 2(6) of the directive. This directive has been implemented into the Copyright Act by introducing a new Section 52 C.

It is also important to highlight the importance of case law from the European Court of Justice, which in recent years has issued many important decisions on the interplay between the acts governing intellectual property rights and technology/the functioning of the internet, eg, platforms and linking.