Newsletter MAY 2022
Trademark law
Preliminary injunction issued against 3 out of 4 companies' use of "Nordic Greens" in the EU and use of the company name “Nordic Greens” in Denmark
On 25 May 2022, the Danish Maritime and Commercial High Court ruled that the mark "Nordic Greens" is confusingly similar to Northern A/S’ registered trademark “Northern Greens”. Therefore, the court issued a preliminary injunction against Nordic Greens Bellinge A/S, Nordic Greens Salat A/S and Nordic Greens Økologi A/S’ use of the mark “Nordic Greens”. No preliminary injunction was sustained against Nordic Green A/S, the holding company of the three “Nordic” companies, as there was no similarity between their goods and services offered and the goods and services covered by the registered trademark.
Read the decision in Danish here.
copyright law
Publishing agreement included the transfer of all rights to commercial use of compositions
On 11 May 2022, the Supreme Court ruled on a case concerning the interpretation of two publishing agreements. In essence, the Supreme Court was to decide whether the publishing agreements between the plaintiffs and EMI Music Publishing Denmark A/S included the transfer of rights to use the plaintiffs’ compositions in musical-dramatic performances (musicals, etc.).
The Supreme Court stated that the provisions on transfer of rights were detailed and clear, and that the agreements unmistakably stated that the listed ways EMI could exercise these rights were not exhaustive.
Therefore, the Supreme Court concluded that the wording of the publishing agreements entailed a complete transfer of all rights to commercial use of the compositions in question, including the right to use the compositions in musical-dramatic performances. The Supreme Court also found that the provisions could not be completely or partially disregarded pursuant to section 36 of the Danish Contracts Act.
The decision can be read in Danish here.
The Danish State deemed to pay DKK 110 million in compensation to artists
On 19 May 2022, the Danish Eastern High Court ruled that the provisions of the Danish Copyright Act on a remuneration scheme (blankmedieordningen) are in conflict with EU law, because the scheme does not include remuneration for sale of certain build-in storage media such as smartphones, tablets, and PCs. Therefore, the scheme does not meet the requirements of the Copyright Directive (InfoSoc) on equitable compensation to rights holders.
The Ministry of Culture was ordered to pay DKK 110.000.000 (approx. 15,8 million USD) in compensation to Copydan KulturPlus (a collective management organization) due to the fact that the Ministry did not adjust the scheme in spite of technological advances, the change in the Danish population’s copying conduct, and two rulings by the European Court of Justice from 2015 and 2016.
Read an extended version of the summary in Danish on the Danish High Court’s website.
MARKETING PRACTICES LAW
Structure screw was protected by the Danish Marketing Practices Act section 3 but not found to be illicitly imitated
The Danish Maritime and Commercial High Court concluded that the plaintiff’s structure screw had the sufficient distinctive character and market position to be protected by section 3 of the Danish Marketing Practices Act against imitations. Yet, the plaintiff’s request for a preliminary injunction was not sustained, as the defendant’s structure screw was not a slavish or close imitation of the plaintiff’s screw.
Read the decision in Danish here.
Hundevad & Co. ApS violated the Danish Marketing Practices Act section 3 by selling an imitation of Ventus-Danmark’s chair “DOWN”
On 12 May 2022, the Danish Maritime and Commercial High Court concluded that Ventus-Danmark ApS’s chair ‘DOWN’ was not protected under copyright law, seeing that the chair was merely a combination of already known elements and as the plaintiff could not document their creative process. However, the court did find that the chair was protected against imitations pursuant to section 3 of the Danish Marketing Practices Act, because the ‘DOWN’ chair was sufficiently distinctive and had obtained the necessary market position.
Subsequently, the court concluded that certain design elements of Ventus’ chair was imitated in Hundevad & Co.’s chair ‘KAISA’, and therefore the chairs produced the same overall impression. Additionally, the chairs were distributed by the same dealers which further emphasized the risk of confusion by the public. Therefore, Hundevad & Co. ApS had violated the Danish Marketing Practices Act section 3 and the court sustained Ventus’ claim for a preliminary injunction.
Read the decision in Danish here.
CIVIL PROCEDURE LAW
Case dismissed as marketing activities were not directed towards Denmark
The case before the Maritime and Commercial High Court concerned the use of the plaintiff’s “FORZA”-trademarks in connection with marketing and selling article of apparel and equipment for sports and leisure. Yet, the main question was first and foremost whether any infringement had occurred in Denmark and the venue had thus subsequently been established in Denmark.
The Maritime and Commercial High Court found that the defendants, who were based in Cyprus and the Netherlands, had sold goods using “FORZA” online, and the court stated that their website had listed an option of delivery to Denmark, thus indicating sale on the Danish market. Yet, this delivery option was due to the use of a website template, and no delivery to Denmark had ever occurred. The court subsequently specified that the mere access to a website does not entail that marketing has occurred in Denmark. Therefore, the defendants had not directed their marketing activities towards Denmark in such a way that venue had been established in Denmark, cf. section 243 of the Danish Administration of Justice Act and Article 7 (2) of the Recast Brussels Regulation (1215/2012). Consequently, the court dismissed the case.
Read the decision in Danish here.