NEWSLETTER MAY 2023
Copyright Law
A caricature and a photograph of the Little Mermaid did not infringe copyright
On 17 May 2023, the Supreme Court found that a caricature and a photograph, published in the Danish newspaper Berlingske, did not violate the famous sculptor Edvard Eriksen’s copyright (now belonging to his beneficiaries) or protection under the Marketing Practices Act.
In May 2019, Berlingske published a caricature of the Little Mermaid, drawn with a zombie-looking face on their front page, and in April 2020 a photograph of the Little Mermaid wearing a face mask. The photograph referred to a research project regarding the connection between fear of COVID-19 and political conviction.
The plaintiffs, the beneficiaries of the sculptor, argued that the use of the sculpture conflicted with Edvard Eriksen’s copyright.
In its judgment, the Supreme Court stressed that Danish Copyright law contains a parody exemption in accordance with EU law, and that the caricature was covered by this exemption.
The Supreme Court also found that the caricature was to be considered as an independent work. The caricature was, therefore, itself copyright protected and was not an infringement of Edvard Eriksen’s copyright.
Regarding the photograph, the defendants argued that the use of the Little Mermaid was protected by freedom of speech.
The Supreme Court thus had to make an assessment balancing freedom of speech and copyright protection. The Court found that the symbolic value of the Little Mermaid as a national symbol was decisive in the defendant’s use, and that the use was not infringing.
The Supreme Court also stressed that the Marketing Practices act does not apply to the press’ editorial use.
The decision can be read in Danish here.
The Ministry of Culture proposes amendment to the Copyright Act
The Danish Ministry of Culture recently introduced a new amendment bill to the Danish Copyright Act. The bill includes several adjustments to make sure that the Act is in accordance with a number of EU directives, namely, the DSM directive. The bill implements the sections in the DSM directive, that have not already been implemented, into the Danish Copyright Act.
Amongst other things, it introduces new sections on text and data mining, which is defined as an automated, digital, analytical procedure that analyses text and data to generate information.
The general use of text and data mining will, as proposed, be regulated by section 11 b. The regulation will make it possible to store data when it is necessary for text and data mining without it constituting a copyright infringement.
However, the rightsholder will be entitled to explicitly reserve the right to text and data mining. If the rightsholder has sufficiently disclaimed and reserved the right to the text or data, and if these are copyright protected, any use or storage would constitute an infringement.
The bill also regulates exemptions for use of text- and datamining, such as for educational purposes.
The bill can be read in Danish here.
Trademark LAW
Numeric pattern was insufficiently distinctive to be a trademark according to EUIPO Board of Appeal
In 2021, the famous French fashion house, Maison Margiela, applied to register a numeric pattern as a trademark. The pattern consisted of the numbers 0 to 23 written in three lines.
The Board of Appeal has in a recent decision found that the pattern would not easily and instantly be recalled by the relevant public. It found that the relevant public is unlikely to remember which numbers are positioned at the beginning and end of each line. Hence, the sign would be perceived as one (or three) unmemorable sequences of numbers.
Additionally, the relevant public would not pronounce the full sequence of numbers when verbally advertising or ordering the products. On this background, the Board of Appeal decided to reject the application.
Read the full decision in English here.
Patent LAW
The Unified Patent Court opens
1 June 2023, the Unified Patent Court (UPC) opened its doors.
It is the first court in civil and commercial matters shared by several EU Member States where companies, non-commercial organizations, and individuals can litigate patent matters.
The Court will enforce European patents across borders in one singular infringement proceeding, and the opening of the UPC is thus intended as a step towards more coherent and harmonized European patent law.
The Court will have jurisdiction over the new unitary Patents and European patents, where the patent holder has not filed an opt-out.
Read more about the UPC by visiting their website here.
Marketing Practices Law
The Maritime and Commercial High Court rules that Bet365’s post on social media infringed several top athletes’ rights to their names and photos
From 21 February 2019 to 11 March 2021, the international betting company Bet365 made several posts with different top athletes on Twitter and Facebook. The posts were marked with Bet365’s logos.
Bet365 had entered a license agreement with Getty Images, in order to use the photos, which included a section regarding restrictions of commercial use.
The Maritime and Commercial High Court found that Bet365 were using the posts for marketing purposes. Moreover, the use of the athletes’ names and photos was missing consent from the athletes and was, hence, an infringement of their rights.
The Court ruled that the infringements were made deliberately, and that the athletes were entitled to compensation in accordance with the Danish Marketing Practices Act.
The Court ruled that Bet365 must pay DKK 50.000 in compensation for each post.
Read the full decision in Danish here.
The consumer ombudsman stresses that compensation for emission of CO2 is misleading when the compensation is inadequate to the emission
The consumer ombudsman has found that two electricity distributors use of the so-called leaf-labelling-system was in breach of the Danish Marketing Practices Act and the ombudsman’s guidelines.
The distributors used labeling containing two green leaves, which requires the that the advertiser neutralizes a CO2 emission equivalent to the expected yearly consumption for the consumer.
The distributors planted trees in Denmark to compensate for the CO2 emissions.
However, the consumer ombudsman found that the consumption of electricity would first be compensated after 100 years with the distributors’ initiative. Hence, the conditions for labelling their products with the two leaves were not met.
The statement can be read in Danish here.