Newsletter AUGUST 2022
Patent law
Tort damages awarded to the defendant in patent case after wrongful injunction
The Danish Maritime and Commercial High Court decided to award DKK 15.000 in tort damages to the defendant in a a patent case, due to the claimaint retracting their claims after initially obtaining a preliminary injunction. The defendant, who issued a counterclaim, could have been awarded higher damages if they had succeeded in proving a loss resulting from the wrongful preliminary injunction.
The decision can be read in Danish here.
Trademark law
EUIPO denies 3d trademark for tablet case due to lack of distinctiveness
Both the EUIPO Examination Division and the EUIPO Board of Appeal has denied the American company Samsonite’s application for a 3d trademark for a tablet case (which as an example could be used for an iPad). It was concluded that the applied trademark did not ‘significantly’ differ from the norms of the relevant market.
This case showcases (once again) the considerable challenges of getting a 3d trademark in the EU under the current practice of the EUIPO.
The decisions of the EUIPO can be found here.
Marketing practice law
Use of the term “patented” for a product, where the protection has expired, is a violations of the Danish Marketing Practice Act
In a case between two competitors that produce ceiling light solutions, the use of the term “patented” for products which were no longer protected by a patent, or a utility model protection was deemed to be a violation of the Danish Marketing Practice Act. The Danish Maritime and Commercial High Court stated that the term was misleading as it could give consumers a wrongful impression, which may make them prefer the falsely advertised product rather than similar products.
The Courts decision can be read in Danish here.
New proposal to introduce prison sentences for gross violations of the Danish Marketing Practice Act
In response to increasing cases of misleading marketing the Danish Ministry of Business has published a proposal for harsher sentencing for violations of the Danish Marketing Practice Act. The fine level of the Act was already heightened with effect from the 1st of January this year, and now certain violations of the provisions on misleading marketing may lead to prison sentences in cases of gross violations.
The proposal is available in Danish here.
The Danish Consumer Ombudsman releases annual report
In the end of June this year, the Danish Consumer Ombudsman has released her annual report for 2020/2021. The report includes larger and principal cases that the Ombudsman has reviewed during the period.
Of particular interest are the case descriptions and decisions in cases regarding violations of good marketing practices, where the Ombudsman has reviewed a large number of cases spanning from influencer marketing to illegal terms for accepting cookies on websites.
The report can be read in Danish here.