On 13 October 2009 the Danish Supreme Court rendered a decision concerning keyword advertising. After the question had been admitted to the Supreme Court by the Danish Board of Appeal Permission, the court refused to issue an injunction on the use of third party registered trade marks as adwords (in this case SKODA). Hanne Weywardt, partner in the Copenhagen office of MAQS Law Firm, reports that the appellant, HE-House A/S and HE-Biler, succeeded in having the High Court’s decision to issue an injunction overruled by the Supreme Court, which doubted whether the registration of a keyword was a “commercial use” of the trade mark belonging to Skandinavisk Motor Co. A/S (SMC).

The judges considered the meaning of Article 6 of the EU Trade Mark Directive unclear with regard to the use of third party trade marks as adwords – an issue which is currently pending before the Court of Justice of the European Union. Consequently the Court found that it was not shown to be likely that HE-House infringed SMC’s trade marks. Thus the conditions of the Danish Code of Civil Procedure section 642, no.1, were not met and the injunction previously affirmed by the High Court could not be upheld. 

Today the key figure in a case concerning the import of several tons of fake “Global” knives and a large quantity of parts to the famous PH-lamps was sentenced to two years imprisonment. The Court found that the 50-year old, along with three others, was guilty of organising the production at a Chinese factory, the importation to Denmark from China, and the attempt to sell off the illegal goods infringing the rights of Yoshida Metal Industry and Louis Poulsen Lighting A/S.  Hanne Weywardt, partner in the Copenhagen office of MAQS Law Firm, reports that today’s sentence is the most severe that Denmark has imposed for copyright infringement.

The quantity of the latest transport in 2005 was over nine tons and was impounded by Danish customs.

The infringer also had his profit of 6.4 million DKK confiscated. 

 In its concise decision of 03/12/2009 the General Court confirmed that under Art. 55(1)(a) of the Regulation No 40/94 there is no requirement for the applicant seeking to revoke a mark to demonstrate an interest in acting. At most, it requires the applicant to be a natural person or a legal entity with the capacity to sue. In contrast, the applications for revocation on relative grounds (Art. 55(1)(b) and (c)) can only be brought by those with interests in challenging the mark (eg., trade mark owners or licensees authorised by trade mark owners etc). The reason for allowing such a wide range of person to challenge a CTM is that there is no justification for protecting those marks where they are not genuinely used (para. 23).

The newspaper Eleconomista informs that the Court of Appeals of Barcelona has upheld a prior ruling by the Commercial Court no. 2 cancelling the Spanish trade mark for "D10R" due to its "obvious resemblance" with Christian Dior Couture Societe's registrations for "Christian Dior" in Spain. 

The Court also found that the "D10R" registration was capable of creating confusion in the market, and that took undue advantage of the claimant's trade marks.

The VAC in a judgment of 23 June 2009, case act signature VI SA/Wa 274/09, ruled that the application for the right of protection for a trade mark is made in bad faith, despite the knowledge or ignorance, resulting from an absence of diligence, about the existence of another's right or interest that is worth of protection, which can be threatened, and with the intention of harming these interests. The overall assessment of the likelihood of confusion as it concerns the visual, aural or conceptual similarity of the marks in question must be based on the overall impression, taking account in particular, their distinctive and dominant components.

 This judgment is not yet final. The parties may file a cassation complaint to the Supreme Administrative Court.