Amendment reinforces fight against counterfeiting

A bill to amend the Trademarks Act, the Criminal Code, the Radio and Television Broadcasting Act and a number of other Danish acts has come into force.

The minister of economic and business affairs introduced the bill to the Danish Parliament in the autumn of 2008. The primary purpose of the bill was to:

  • reinforce the fight against counterfeiting; and
  • increase the sanctions against legal entities and individuals engaged in counterfeiting.
The bill was approved in December 2008 and came into force on January 1 2009.

Counterfeiting is harmful to consumers, companies and the economy as a whole. Typically, counterfeit products fail to fulfil the requirements imposed on genuine products. Therefore, the use of counterfeit goods may pose health and safety risks to consumers.

The recent legislative initiative sought to regulate the issue of liability under the Danish acts on trademarks, designs, patents and utility models. For example, under the former acts, only intentional infringement was punishable. However, gross negligence is now considered to be a punishable act.

In addition, the amendment provides for stricter penalties:
  • up to one-and-a-half years’ imprisonment in case of severe infringement; and
  • up to six years’ imprisonment in case of particularly severe infringement.
Legal entities that are found liable for infringement will have to pay a pecuniary penalty. Because the terms of imprisonment have been increased under the amendment, it is expected that the courts will also increase the amount of the pecuniary penalties.

Moreover, the amendment provides for the possibility of initiating a public prosecution at the request of an injured party where:

  • the infringement is intentional; and
  • there are aggravating circumstances.
In order to ensure the efficacy of these initiatives, the new legislation provides the authorities with increased powers to investigate and take action against infringers. For example, the customs authorities now have the power to contact the IP rights owner if they find goods that are suspected of being counterfeit during ordinary inspections or random checks of imported goods from other EU countries. Previously, such powers were confined to goods imported from third countries. 
With regard to patents, the Danish Patent and Trademark Office may now, at the request of the rights holder, publish a patent in either Danish or English (however, the patent claims must be in Danish). This increased use of English gives the office the opportunity to accommodate the demands of both Danish and foreign users. 

With regard to trademarks, if a trademark owner wishes to file an international application designating Denmark, it may choose to file the Danish translation of the international application or the English version.

In conclusion, the new legislation aims to strengthen the fight against counterfeiting and establish a more user-friendly system for IP rights holders.

Lasse A Søndergaard Christensen and Christian Fleischer Christiansen, Gorrissen Federspiel Kierkegaard, Aarhus

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