The protection for geographical indications is provided through provisions in the Danish Marketing Practices Act, No. 428 of 1 June 1994 (Markedsfringsloven) and the Danish Food etc. Act, No. 310 of 6 June 1973 (Levnedsmiddelloven). Such protection does not require registration. Legal means to prevent use of geographical indications is in Denmark further based on the EU Council and Commission Regulations (the most important ones being Regulations No. 822/87, No. 823/87, No. 2392/89, No. 3201/90 and No. 3378/94).
The Danish Marketing Practices Act provides the general protection of geographical indications (cf. Articles 1 and 2 - prohibition against unfair competition and misleading advertising). A single regime of geographical protection does not exist. However, the general clause in Article 23 of the Danish Food etc. Act stipulates that foodstuffs must not be sold under circumstances which can result in the consumer being misled concerning the marketing of food, wines and spirits (the origin of the product, the time of production, nature, sort, quantity, compositions, treatment, characteristics and effect). Further, it is possible to obtain a registration of a collective mark including a geographical indication (cf. Article 3 of the Collective Marks Act (Faellesmaerkeloven), but this registration does not provide protection of geographical indications used by a third person in accordance with good marketing practice. The latter regulation corresponds with the EEC Regulation No. 2081/92.
As the protection ensured through the above Acts applies to all kinds of marketing practices incompatible with good marketing practices, the protection extends to services.
[Answer 1: The protection for geographical indications is provided through provisions in the Danish Marketing Practices Act, No. 428 of 1 June 1994 (Markedsfringsloven) and the Danish Food etc. Act, No. 310 of 6 June 1973 (Levnedsmiddelloven). Such protection does not require registration. Legal means to prevent use of geographical indications is in Denmark further based on the EU Council and Commission Regulations (the most important ones being Regulations No. 822/87, No. 823/87, No. 2392/89, No. 3201/90 and No. 3378/94).]
[Answer 2: The Danish Marketing Practices Act provides the general protection of geographical indications (cf. Articles 1 and 2 - prohibition against unfair competition and misleading advertising). A single regime of geographical protection does not exist. However, the general clause in Article 23 of the Danish Food etc. Act stipulates that foodstuffs must not be sold under circumstances which can result in the consumer being misled concerning the marketing of food, wines and spirits (the origin of the product, the time of production, nature, sort, quantity, compositions, treatment, characteristics and effect). Further, it is possible to obtain a registration of a collective mark including a geographical indication (cf. Article 3 of the Collective Marks Act (Faellesmaerkeloven), but this registration does not provide protection of geographical indications used by a third person in accordance with good marketing practice. The latter regulation corresponds with the EEC Regulation No. 2081/92.]
According to Article 22 of the TRIPS Agreement, the Danish Marketing Practices Act, Article 2, provides for a prohibition against misleading advertising. This provision undoubtedly includes the use of geographical indications calculated to mislead. Article 23 of the Danish Food etc. Act provides protection as mentioned in the reply to question 2 above.
The protection is provided through the provisions of the above Acts.
Case law regarding domestic geographical indications is scarce. Nevertheless, Denmark is in compliance with its obligations under the TRIPS Agreement. As an example, U57.545 H can be mentioned, where a shopkeeper had violated the provision of prohibition against misleading advertising in the Danish Competition Law, which was applicable at that time, by selling foreign tomatoes under such indication on a show-card that the buyer would normally get the impression that the tomatoes were of Danish origin.
Yes. EU Regulation No. 2081/92 provides such protection.
There are no clear distinctions among the terms mentioned in the question.
Geographical indications are not specifically defined. However, the Danish Marketing Practices Act and the Food Act provide for a general prohibition against acts which can mislead consumers. These general rules are applied in cases of false or misleading use of geographical indications.
Yes, as the protection applies to all kinds of misleading information, it will also cover such indirect links to specific regions.
Criteria concerning recognition of geographical indications are based on a specific judgement. The main criterion is whether a geographical indication is known as a geographical indication in the relevant sector of the public. If it is not known or if it has become a generic term, protection is not granted.
Human creativity does not necessarily have to be involved in the making of the geographical indication.
Other intellectual property rights may be involved in cases where the geographical indication is applied for as a trademark according to the Danish Trade Marks Act. The Collective Marks Act contains a provision that expressly allows for registration of geographical indications (cf. section 3).
No authority "defines" the geographic region or area for which rights are claimed. The court decides whether the use of a geographical indication is misleading according to the above Acts.
The practical conditions under which homonymous geographical indications will be distinguished from one another are based on EU Regulation No. 2392/89, particularly Articles 25-29 and 40; EU Regulation No. 3201/90 and the Food Act (section 23) and the Danish Marketing Practices Act (sections 1 and 2). According to these rules, only geographical indications mentioned in Regulation No. 3201/90 can be used as a description for wine in the EU and wine imported from a third country. Further, geographical indications may not imply the risk of confusion or mislead the consumer as to the true origin of the wine. The interpretation of the Danish Marketing Practices Act and the Danish Food etc. Act is always based on a specific judgement of how a homonymous geographical indication is able to mislead the consumer as to the true origin of the wine.
The proceedings relating to the use of a misleading geographical indication as mentioned above apply to all indications, no matter the origin.
No.
The Danish Marketing Practices Act and the Danish Food etc. Act prevent the use of a geographical indication as said in the question.
See the replies to questions 44 and 47 under I above.
[Answer 44: A trademark that consists solely of a geographical indication cannot be registered, except if it has acquired distinctiveness through use. Many figurative marks (e.g. labels for wines and foodstuffs) which contain geographical indications as an element can, however, be registered if the applicant resides in the region or if the products originate from the region. Such trademark registration will not be affected by a subsequent recognition of a geographical indication.]
[Answer 47: In the Danish Trade Marks Act, the grounds for refusal are laid down in sections 13 and 14. A trademark cannot be registered if the mark infringes a geographical origin or violates the provisions concerning good marketing practice according to the Danish Marketing Practices Act. If the registration has, nevertheless, taken place, it can be invalidated by actions taken by the injured party. This party can be a person, an entity or a public authority. Geographical indications are enforced by a normal court procedure. The provisions available for this procedure are the above Acts, which are the Danish Marketing Practices Act, the Danish Food etc. Act and the Danish Trade Marks Act. The procedure regarding the Food etc. Act is initiated by the Public Prosecutor.]
No formal system for recognition of geographical indications exists.
The protection of geographical indications is obtained through the procedures laid down in the Danish Marketing Practices Act.
No fees are involved.
No criteria or information are to be set out in this context (cf. the above reply).
The Danish protection of geographical indications is not based on a system of recognition but rather on prohibition against misleading use of a geographical indication. The recognition of a geographical indication is in this context based on a normal court procedure where the defendant has the possibility of opposing the claim that his indication is misleading.
No prescribed time-limit for the protection against misleading information appears from the Danish Marketing Practices Act or the Danish Food etc. Act.
No system for renewal or reaffirmation of the protection of geographical indications exists.
No requirements of use exist in this context.
There are no such limits for non-use.
There are no provisions laid down in this context (cf. the reply to question no. 1 above).
See the reply to question 32 above.
[Answer 32: There are no provisions laid down in this context (cf. the reply to question no. 1 above).]
There are no such means.
Actions against misleading use of a geographical indication can be initiated both by the Danish authorities and by other entities having a "legal interest" in the matter.
If a person or entity is entitled to use a geographical indication, which is not misleading, no additional criteria are required.
The determination regarding use of a geographical indication is made by a court of law.
To resolve a dispute regarding geographical indications, the procedure of the Danish Marketing Practices Act should be used.
No provisions exist in this regard.
Such dispute can be resolved through a normal court procedure.
There are no licensing provisions concerning geographical indications.
"Grandfather use" will be considered by the competent authorities, if claimed by one of the parties.
A trademark that consists solely of a geographical indication cannot be registered, except if it has acquired distinctiveness through use. Many figurative marks (e.g. labels for wines and foodstuffs) which contain geographical indications as an element can, however, be registered if the applicant resides in the region or if the products originate from the region. Such trademark registration will not be affected by a subsequent recognition of a geographical indication.
See the reply to question 44 above.
The procedures in case of a conflict are the normal procedures as applied in case of any trademark conflict, i.e. both administrative procedures (opposition and revocation) and normal civil procedures before the courts of law.
See the reply to question 14 under I above.
[Answer 14: The practical conditions under which homonymous geographical indications will be distinguished from one another are based on EU Regulation No. 2392/89, particularly Articles 25-29 and 40; EU Regulation No. 3201/90 and the Food Act (section 23) and the Danish Marketing Practices Act (sections 1 and 2). According to these rules, only geographical indications mentioned in Regulation No. 3201/90 can be used as a description for wine in the EU and wine imported from a third country. Further, geographical indications may not imply the risk of confusion or mislead the consumer as to the true origin of the wine. The interpretation of the Danish Marketing Practices Act and the Danish Food etc. Act is always based on a specific judgement of how a homonymous geographical indication is able to mislead the consumer as to the true origin of the wine.]
In the Danish Trade Marks Act, the grounds for refusal are laid down in sections 13 and 14. A trademark cannot be registered if the mark infringes a geographical origin or violates the provisions concerning good marketing practice according to the Danish Marketing Practices Act. If the registration has, nevertheless, taken place, it can be invalidated by actions taken by the injured party. This party can be a person, an entity or a public authority. Geographical indications are enforced by a normal court procedure. The provisions available for this procedure are the above Acts, which are the Danish Marketing Practices Act, the Danish Food etc. Act and the Danish Trade Marks Act. The procedure regarding the Food etc. Act is initiated by the Public Prosecutor.
The Danish authorities ensure ex officio, as a part of the examination procedure and opposition procedure form third parties, that geographical indications are not registered as trademarks. Further, the Consumer Ombudsman is entitled to bring actions against the users of misleading information regarding geographical indications. Eventually, any person or entity is entitled to enforce a geographical indication (cf. the Danish Trade Marks Act and the Danish Marketing Practices Act). The protection according to the Danish Food etc. Act must be enforced by the Public Prosecutor (Section 64) and no fees are involved.
Measures in this respect ar taken by courts of law or by the Consumer Ombudsman.
Sanctions against violations of the Danish Marketing Practices Act are fines or detention without trial. The Danish Food etc. Act provides for fines, detention without trial or up to one year of imprisonment.
Denmark is a party to the Madrid Protocol, the Paris Convention and of course the TRIPS Agreement, but no agreement with the specific aim of protecting geographical indications.
None.
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