Newsletter January 2023
Trademark law
The 12. edition of the Nice Classification entered into effect on 1 January 2023
The 12. edition of the Nice Classification includes several changes, including adjust-ments for the classification of crypto assets, inter alia, NFTs and blockchain technology.
The new edition of the Nice Classification will be applied to any application for international registration received by the office of origin on or after 1 January 2023.
Read more about the latest edition by downloading the List of Goods and Services with Class Headings and Explanatory Notes here.
A test purchase was enough to prove that products could be sold in Denmark
On 25 January 2023, the Maritime and Commercial High Court granted an injunction with the condition of providing a security.
The Court found that the products in question in general infringed the plaintiff’s rights. However, a central question was whether the defendant was selling – or was able to sell - its products to addresses in Denmark.
The majority of the Court (two judges) found that there was a fair risk that products could be bought by Danish consumers and delivered to Danish addresses. The assumption was based on the fact that a test purchase had gone through - even though the purchase was cancelled and refunded afterwards by the defendant. The majority of the Court, therefore, found that the requirements in section 413 of the Danish Administration of Justice Act were met.
The dissenting judge, however, found that the defendant had taken the necessary measures to prevent sale in Denmark and that the injunction should therefore not be granted. He also noted that no documentation of products delivered to addresses in Denmark was presented.
The decision can be read in Danish here.
The Maritime and Commercial High Court finds that the wording “flyhjælp” was not descriptive - a preliminary injunction was thus granted
In a decision on 31 January 2023, the Maritime and Commercial High Court found that the wording “Flyhjælp” (translated: airplane help) was not descriptive for a company that assists people with compensations for delayed flights and cancellations.
The plaintiff, Flyhjælp ApS, claimed a preliminary injunction to be granted against the defendant, Travelrefunds ApS and Hornskov Vindberg A/S, as the defendants were using the word “Flyhjælp” in their marketing.
As the trademark was not descriptive, the Court found that the defendants’ use of “Flyhjælp” infringed the plaintiff’s trademark rights and also violated the Danish Marketing Practices Act.
The preliminary injunction was thus granted.
The judgement can be read in Danish here.
PATENT LAW
The European Patent Office opens for early access to apply for unitary effect
On 1 January 2023, the European Patent Office opened for the possibility of early applications for unitary patents. This means that it is now possible to fill out the application and that EPO will then register the unitary effect as soon as the new system enters into force.
The new Unitary Patent system is expected to launch on 1 June 2023.
More about the options for early access and filings can be read here.
COPYRIGHT law
The Maritime and Commercial High Court awards DKK 6.400.000 for copyright infringements
In a decision by the Danish Maritime and Commercial High Court on 30 January 2023, the Court gave judgment for DKK 6.400.000 to the plaintiff, Kasper Würtz, for copyright infringements of ceramics.
The judgement follows the well-publicized decision made by the Eastern High Court on 27 May 2021 where the defendants were found guilty of infringing Kasper Würtz’s copyright.
The defendants had had a total revenue of DKK 57.162.278,74 for the products in question, and the Court thus found that the plaintiff’s equitable remuneration was DKK 4.000.000. Additionally, the Court found that the plaintiff should be compensated with DKK 2.400.000 for market disturbances.
Read the judgement in Danish here.
Marketing practice law
The Danish Consumer Ombudsman stresses the rules on “misleading consumers” in greenwashing-case
The Consumer Ombudsman found that Suzuki Bilimport, Toyota Danmark, and OK Benzin had made their products seem less environmentally damaging than they, in fact, were.
Thus, the three companies were violating the Danish Marketing Practices Act as the statements used in the commercials were misleading to consumers. The Consumer Ombudsman stated that the marketing would have been in accordance with the Marketing Practices Act if the statements were more precise and concrete.
The Consumer Ombudsman clarified that future misleading statements regarding the environment will be reported to the police.
Read the press release in Danish here. A quick-guide on the regulations on marketing environmentally damaging products can be found in Danish here.
Utility Model law
The Maritime and Commercial High Court finds that the Danish Patent and Trademark Office is not obligated to consider the risk of double protection for utility models ex officio
In a decision on 6 January 2023, the Maritime and Commercial High Court found that the ex officio assessment made by the Patent and Trademark Office when registering utility models is limited to the conditions explicitly stated in section 19 of the Utility Model Act.
It was thus not a mistake that the Office did not include an earlier registration when registering a utility model with a claim identical to the earlier registration.
The paragraphs of the judgement explain that the decision was motivated by the possibility of having a fast and cheap registration of utility models.
The judgment can be read in Danish here.