Textile designs can be protected as follows under our legal system: (a)By the Design Patents Act, insofar as the textile designs are filed as designs in accordance with the procedure described in the answer to question 9(b) above. (b)Under Section 1 of the Law against Unfair Competition , such designs or models of a fashion creation as can be deemed to have a competitive special characteristic meriting protection can be protected for the duration of a fashion season, as a rule six months. A "competitive special characteristic" will also be present where the copyright holder has recourse to what is essentially already known, but where this occurs for the first time in the fashion season in question and the recourse in that season to something already known is felt to be a special fashion innovation. (c)Pursuant to Section 2(1), No. 4 of the Copyright Act, fashion creations can be copyrighted where they can be counted among works of applied art.

Yes.

The term "persons and enterprises" in Section 1 of the Danish Trademarks Act (DTA) should be understood to cover all natural and legal persons. There are no requirements as to the nature of the business performed by the rightholder. Private persons, non-profit organizations, holding companies and non-commercial enterprises can thus obtain trademark rights. The DTA is thus in full compliance with TRIPS Article 15.4.

Colour marks are capable of constituting a trademark under the DTA. This is not explicitly mentioned in Section 2(1), but the listing of the types of signs in Section 2(1) of which a trademark may consist is not exhaustive. Colours constitute an important element of many marks, e.g. logos and labels and does thus often contribute to the distinctiveness of a mark. If a trademark, upon the request of the applicant, is to be registered in colour, a remark to this effect will appear in the register.

The rule in the DTA, Section 25 concerning the requirement of use says that, in order to avoid a possible revocation of a registered trademark, the mark must be used genuinely within a period of five years and in a form that does not significantly differ from the form in which it is registered. If a mark is used in a significantly different form, the rightholder runs the risk of getting the registration revoked. However, he still has a trademark right to the mark in its actually used form in accordance with the DTA, Section 3(1)(ii). Denmark is of the opinion that these rules are in compliance with TRIPS Article 20. The DTA does not impose upon the rightholder any obligations to use the trademark in any other form than the form the rightholder himself chose, when he applied for registration. Article 25 is based on Article 10 of the EU Directive on trademarks.

Unregistered well-known marks, as mentioned in TRIPS Articles 16.2 and 16.3 (which makes references to Article 6bis of the Paris Convention), are protected via Section 15(2)(iv) of the DTA. The DTA does not distinguish between trademarks and service marks and, consequently, the well known marks are also protected for services (cfr. the DTA Section 15(1)). The criteria mentioned in TRIPS Article 16.2 for determining whether a mark is well-known are not mentioned explicitly in the DTA. Both administrative and judicial practice shows, however, that the listed criteria are taken into account as some of the most important. There is no case law that has dealt with the question on the protection of a well-known mark (in the Article 6bis meaning of the word) beyond the goods and services for which it is registered. In order to avoid any doubt as to whether the obligation under TRIPS Article 16.3 is met, the proposal to amend the DTA contains a provision that specifies the scope of protection to also cover this situation.

Also the previous Danish trademark laws contained provisions on the protection of well-known marks. Consequently, there has, over the years, been a large number of judicial and administrative decisions addressing this issue. To give an impression of how these rules are applied in practice, only a few of these decisions will be drawn to your attention and only in extract. High Court Decision 1994 The mark COCA-LINE used for footwear was found to infringe the trademark COCA-COLA. The defendant recognized that COCA-COLA was a well-known mark and the High Court simply applied the criteria of the statute, i.e. that "the use" (of COCA-LINE) "would take unfair advantage of, or be detrimental to the distinctive character or repute of" (COCA-COLA). Sea and Maritime Court Decision 1995 McALLAN's used as a name for a single frankfurter stall was found to infringe the trademark McDONALD's. McDONALD's furnished evidence of the well-knownness of their mark in form of proof of their market shares and the awareness of the mark among the public. (The High Court overturned this decision in December 1996. The decision was based on the same facts and applied the same criteria - but with a different outcome.) Similar evidence was furnished in a SMC decision of 1993, where the label of CORDON ROUGE/VERT (Mumm champagne) was found to be well known and could stop the use of a very similar label for beer. The Appeal Board The Appeal Board in 1989 found that the mark OSCAR, which was applied for in respect of "cinematographic services", was infringing the well-known name of the annual film prize The OSCAR. In 1991, the Board found that BOSS, which was applied for in respect of "chemical substances for disinfection" was detrimental to the repute of the well-known mark BOSS, belonging to Hugo Boss.

The exact text of the proposed amendment is attached in Danish. The amendment refers to the existing provision in paragraph 15.2(IV) which again refers to Article 6bis of the Paris Convention. The rest of the amended text implements the wording of TRIPS Article 16.3. When the amendments are passed through Parliament, the amended law will be translated and notified as soon as possible.

The principles for determining the possible likelihood of confusion between two marks are stated in the DTA, Section 4 and repeated in Section 15. Section 15(1)(i) states explicitly, and both administrative and judicial practice based on Article 4 shows, that likelihood of confusion is presumed to exist if identical marks are used for identical goods. Although the legal status thus is in compliance with TRIPS Article 16.1 and Article 5(1) of the EU Directive on trademarks, the proposal to amend the DTA includes a change in the wording of Section 4(1)(ii) so that it follows the wording of Section 15(1)(i).

The user requirements in the DTA, Section 25 enters into force on 1 January 1997 (cfr. Section 61(3) of the DTA). Consequently, there are at present no administrative or judicial decisions addressing the issue. It is however foreseen that "proper reasons" could be import or export restrictions on the relevant goods; force majeure; or a pending administrative decision, e.g. a marketing licence for a medicinal product.

As far as Community law is concerned, reference is made to Article 29, paragraph 1 of Council Regulation (EC) No. 40/94, as amended by Council Regulation (EC) No. 3288/94, which reads as follows: "A person who has duly filed an application for a trademark, in or for any State party to the Paris Convention, or to the Agreement Establishing the World Trade Organization, or his successors in title, shall enjoy, for the purpose of filing a Community trademark application for the same trademark in respect of goods or services which are identical with or contained within those for which the application has been filed, a right of priority during a period of six months from the date of filing of the first application".

Council Regulation 2081/92/EEC sets out the procedure for the registration of geographical indications in relation to agricultural products and foodstuffs in the Community territory. The procedure contained in Articles 5, 6 and 7 is as follows: 1.A group of producers must submit a detailed application for registration to the competent authority of the Member State, in accordance with the conditions specified in the Regulation. 2.If the application is considered to be in conformity with the Regulation, it shall be referred to the Community authorities, who will verify that the conditions of the Regulation have been formally satisfied and will publish the application in the Official Journal to allow other parties the opportunity to raise objections. 3.If an objection is raised, the final decision on registration is taken by the Commission and the Member States. The Member States are responsible for controlling the application of the Regulation. The protection granted by the Regulation is ex officio, that is to say that the Member States ensure that each registered geographical indication or designation of origin is protected against any encroachment taking place within the EU. As for the protection of geographical indications of WTO Members, it is necessary to distinguish the following situations: 1.The protection pursuant to Article 22 of the TRIPS Agreement, which is guaranteed by the Member States' application of Council Directive 79/112/EEC concerning labelling (prohibition to mislead the public). In the event of a problem relating to a geographical indication of a WTO Member, the EC Member States ensure the possibility for the operators concerned to take legal action in their courts. 2.The ex officio protection pursuant to the above-mentioned Regulation 2081/92, for which either: -the procedure followed by Community producers as outlined above must be followed, in accordance with the principle of national treatment; or -a bilateral agreement should be concluded as envisaged in Article 12, when the system of protection is equivalent to the Community regime. All geographical indications are protected against misleading advertising in the Community under Council Directive 84/450/EEC relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising. Article 3 of the Directive provides that, in determining whether advertising is misleading, account shall be taken in particular of any information it contains concerning the characteristics of goods or services such as [...] geographical or commercial origin. According to Article 4 of this Directive, Member States ensure that adequate and effective means exist for the control of misleading advertising.

Text of the answer identical to the reply to question 4 from New Zealand under A, as reproduced above.

Council Regulation (EC) 40/94 became operational on 1 April 1996. Thus, no Community trademarks exist prior to the entry into force of the WTO Agreement. Article 64(2) of the said Regulation provides that, in derogation from the principle that trademarks which consist exclusively of signs or indications which may serve, in trade, to designate the geographical origin of the goods or of rendering of the service, shall not be registered (Article 7(1)(c)), such marks may constitute Community collective marks. Thus, under these circumstances, dual use of the same matter as a trademark and as a geographical indication is permitted. It should be noted, however, that the holder of such a Community collective mark cannot invoke his exclusive right against a third party who is entitled to use a geographical name. Moreover, Article 40, paragraph 3, second indent of Council Regulation (EEC) 2392/89 (as amended by Council Regulation (EEC) 3897/91) concerning description and presentation of wines and grape musts envisages that the holder of a well-known registered brand name for a wine or a grape must which contains wording that is related to geographical indications may continue to use that brand name if: - it corresponds to the identity of its original holder or of the provider of the name; and -the brand name was registered at least 25 years before the official recognition of the geographical name in question by the producer's Member State and it has actually been used without interruption. The same rule applies to sparkling wines (Article 13, paragraph 3 of Council Regulation (EEC) 2333/92). As regards geographical indications and designations of origin for agricultural products or foodstuffs, registered under Council Regulation 2081/92/EEC, the provisions of Article 14, paragraphs 2 and 3 apply with regard to trademarks existing prior to the registration. Under Article 14(3), a designation of origin or a geographical indication shall not be registered where, in light of the trademark's reputation and renown and the length of time it has been used, registration is liable to mislead the consumer as to the true identity of the product. Under Article 14(2), use of a trademark corresponding to one of the situations referred to in Article 13 of Regulation 2081/92 (usurpation, imitation, direct or indirect evocation, etc.) in relation to a registered geographical indication or designation of origin, is permitted under the following conditions: -The trademark was registered in good faith before the date on which application for registration of a designation of origin or geographical indication was lodged; -It can be demonstrated that the use of the trademark could be done in conformity with Community law; -It cannot be demonstrated, at the time of registration of the trademark, that there are the following grounds for invalidity or revocation as provided by the First Council Directive on the approximation of the laws of the Member States relating to trademarks (89/104/EEC), i.e: -the trademark is exclusively an indication of geographical origin (Article 3(1)(c)); -the trademark is of such a nature as to deceive the public as to the geographical origin of the product (Article 3(1)(g)); -as a consequence of the use made of it by the proprietor of the trademark, or with his consent, the trademark is liable to mislead the public, particularly as to the geographical origin of the product (Article 12(2)(b)).

For the time being, design protection is not subject to Community-wide legislation and, consequently, users of industrial designs, including textile designs, must rely on protection at the level of the Member States. Such protection is available under national design law, national copyright law or under national sui generis legislation. The Commission proposals for a Directive on the harmonization of the laws of the Member States on the protection of designs and for a Regulation on the Community Design are pending before the Council and the European Parliament.

Pursuant to Article 4 of Council Regulation (EC) 40/94, a sign of which a Community trademark may exist must be capable of being represented graphically. In this respect, it should be noted that the mark for which registration as a Community trademark is sought must in principle, where the applicant does not wish to claim any special graphic feature or colour, be reproduced in normal script or, in other cases, must be reproduced on a separate sheet of paper.

Council Regulation (EC) 40/94 does not explicitly refer to the possibility to register sounds and smells; neither does it rule out such possibility. In this respect, it should be noted that such signs, in order to qualify for registration as a Community trademark, should be capable of being represented graphically and of distinguishing the goods and services of one undertaking from those of other undertakings. In this respect, the answer to question 5 from Australia above applies mutatis mutandis.

The reference to "well-known marks" under Council Regulation (EC) 40/94 specially follows Article 6bis of the Paris Convention. The Community trademark system, established by that Regulation, became operational on 1 April 1996. To date, the concept of "well known" has not been applied in practice. Further, neither the Regulation, nor any other relevant Community instrument, contain elements on the interpretation of "well known". Nevertheless, it should be noted that Article 16.2 of the TRIPS Agreement contains some elements which should be taken into account in determining whether a trademark is well known. Regulation 40/94 meets with Article 16.2 of the TRIPS Agreement by providing that holders of well-known marks, in the sense of Article 6bis of the Paris Convention, may oppose to the registration of, or invalidate, younger Community trademarks for similar goods and services (Articles 8(2)(c), 9 and 52(1)). Regulation 40/94 meets with Article 16.3 of the TRIPS Agreement by providing, in its Article 8(5), that holders of earlier marks, as defined in Article 8(2) of that Regulation (thus including the "6bis" marks), may oppose to the registration of a younger trademark as a Community trademark for dissimilar goods or services for which the mark has been registered, provided that the earlier mark has a reputation. Since the concept of "reputation" constitutes a lower threshold than the concept of "well-known", the Community has complied with its obligations under Article 16.3 of the TRIPS Agreement.

(i)In accordance with Article 22 of the TRIPS Agreement, reputation as such is a sufficient element to obtain the protection as geographical indication under Article 2(2)(b) of Regulation 2081/92/EEC. (ii)It is important to stress that, in general, conditions provided in Article 12 of Regulation 2081/92/EEC are only required when a bilateral agreement is concluded between the EC and a WTO Member. This means that it only occurs when two parties voluntarily wish higher level of protection ("ex officio") than this provided under the TRIPS Agreement. So, this is not a compulsory condition but another option that can be used when systems are equivalent, in particular conditions under Article 4 (specifications) and Article 10 (inspection). (iii)See answer to question 1(ii).

As a preliminary remark, the Community would like to underline that the protection of geographical indications foreseen in Article 22.2 of the TRIPS Agreement is provided for in Council Directive 79/112/EEC on the approximation of the legislation of the Member States on food labelling and Directive 84/450/EEC concerning misleading advertising. Article 2 of Directive 79/112/EEC provides that labelling shall not be of such a nature as to mislead the consumer, namely on the origin or source of the product. Article 3 foresees the place of origin or source as a compulsory indication on the labelling of food products, where the absence of such indication could be likely to mislead the consumer as to the true place of origin or source of the food. Article 2 of Regulation 84/450/EEC provides for a definition of misleading advertising which may result in unfair competition by reason of its deceptive nature. Article 3 considers, in particular, any information it contains concerning geographical or commercial origin as relevant criterion in determining whether advertising is misleading. Article 4 deals with the legal means Member States shall provide for the control of misleading advertising in the interest of consumers as well as competitors and the general public. The protection foreseen by these provisions under Community law and Member States' law is applicable to any WTO Member citizen without discrimination. (a)On the one hand, Council Regulation 2081/92/EEC provides for: (i)the "reputation" which is attributable to the name (geographical origin) (Article 2); and (ii)the product (which is covered by the geographical name) which complies with a specification (Article 4). This means that the Regulation has established a difference between the designation and the product. Both conditions are cumulative. On the other hand, to comply with a specification, it is important to guarantee a continuity and homogeneity of the product's characteristics which are necessary as a reference for the inspection bodies. This is essential also for the consumer. As a matter of fact, a geographical indication requires anyway that the product which is covered presents a defined description. If these conditions must be complied with by the producers established in the EC to obtain a protected designation of origin (PDO) or protected geographical indication (PGI), they must also be complied with by the third country nationals, should they wish to obtain the same protection. (b)The inspection of the conformity for the products whose geographical name has been registered as a protected designation of origin (PDO) or a protected geographical indication (PGI) is essential to ensure the credibility of the system for the consumers. This is an essential element of the Regulation. In order to obtain the same protection (Article 13 of the Regulation), if it must be complied with by the producers established in the EC, it must also be complied with by the third country nationals, to avoid discrimination. (c)Article 12 of Council Regulation 2081/92/EEC provides for the same protection in respect of products from third countries which meet those requirements. Therefore, nationals from other WTO Members are afforded treatment "no less favourable" than Community nationals, as required by Article 3 of the TRIPS Agreement. (d)Under Council Regulation 2081/92/EEC, the advantage of registration is available to the nationals of all WTO Members without any distinction. Accordingly, Council Regulation 2081/92/EEC is fully consistent with the requirements of Article 4 of the TRIPS Agreement.