NEWSLETTER FEBRUARY 2022
Patent law
Arguments regarding invalidity could not be taken into account, as they had not been presented in the claims – The Danish Maritime and Commercial High Court’s decision of February 1st, 2022
The Danish Maritime and Commercial High Court was presented with a number of procedural disputes in a case regarding patent infringement and invalidity. The court could not render a decision on the invalidity of a patent, as an invalidity claim had not been presented. Furthermore, the court dismissed a claim regarding lack of inventive step, due to the lack of a sufficient supporting analysis, such as the Problem-solution approach.
The decision can be read (in Danish) here.
The EPO updates their “Guidelines for Examination” from March 1st, 2022
The EPO has published an updated version of their “Guidelines for Examination”, which will enter into force on March 1st, 2022. The four most significant changes regard patent descriptions, establishing a technical effect of a simulation, partial priority, and inventor’s location. Read more about the changes here.
The new guidelines can be read in full length here.
Trademark law
Registration of the trademark “Gyro” was not done in bad faith, nor was it an infringement of earlier rights established through use – The Danish Maritime and Commercial High Court’s decision of February 17th, 2022
The Danish Maritime and Commercial High Court concluded that the right to the trademark “Gyro” had not been established through use prior to the other party’s registration of the mark. The court also decided that the registration had not been made in bad faith. On these grounds, the court issued an injunction against the opposing party’s use of the registered trademark.
The decision can be read (in Danish) here.
The claimant had not met the burden of proof of being the owner of a figurative mark and trade secrets after a company’s bankruptcy. However, compensation for market displacement due to disloyal behavior was awarded – The Danish Maritime and Commercial High Court’s decision of February 11th, 2022
The Danish Maritime and Commercial High Court concluded that the claimant had not proved that they were the owner of the rights to a figurative mark and trade secrets after a former company’s bankruptcy in 2017. The claimant had not bought the rights from the insolvent estate, and the additional information of the case did not prove that the claimant was the owner of neither the figuremark nor the trade secrets. The defendant was however found to have shown disloyal behavior and the claimant was awarded a compensation on a discretionary basis.
Read the decision (in Danish) here.
Design- and copyright law
Illustration in Berlingske Tidende infringed the copyright to The Little Mermaid – The Danish Eastern High Court’s decision of February 9th, 2022
The Danish Eastern High Court upheld the District Court of Copenhagen’s decision that an illustration and a photograph in the newspaper Berlingske Tidende infringed the sculptor Edvard Eriksen’s beneficiaries’ copyright. The illustration could not be seen as an independent copyrighted work but was instead a derivative work. The court found that even if there is a non-statutory parody exception in Danish law, this exception must have a very narrow scope of application, and the illustration in question was not in any event covered by this exception. Furthermore, the court found that freedom of speech considerations could not lead to another result. Therefore, the High Court upheld the District Court’s verdict and raised the damages to DKK 300.000.
The decision can be read (in Danish) here.
China joins the Hague System from May 5th, 2022
China has joined the Hague System entering into force on May 5th, 2022. This means that companies now get the opportunity to obtain design protection in China through the Hague System.
Read more about China’s accession here.
New dispute resolution center to hear on disputes regarding rights to design, architecture, and creative crafts
On February 24th, 2022, a new dispute resolution center named “the Design Board” (“Designnævnet” in Danish) was launched. The board can make non-binding decisions in cases regarding the Danish Copyright-, Design-, and Marketing Practices Acts. The purpose of the board is to make it easier and cheaper for designers, architects, and craftsmen to secure their rights.
The Design Board’s website (in Danish) can be accessed here.
Market practice law
New guidelines on advertisement for medicinal products sent for consultation
The Danish Medicines Agency has sent drafts for two new guidelines, regarding advertisement for medicinal products for humans and animals respectively, for consultation with a deadline of March 1st, 2022. The drafts include clarifications in a number of areas, including on the use of social media and on which factors should be taken into account regarding vaccination campaigns.
The drafts can be read (in Danish) here.