Denmark

1. TRADE MARK

1.1. Sources of law

The principal sources of law in relation to trade marks in Denmark are:

  • the Danish Consolidated Act on Trade Marks (no. 109 of 24 January 2012) which inter alia implements the Directive (2008/95/EC) of the European Parliament and of the Council to approximate the laws of the Member States relating to trade marks; and 
  • the Council Regulation (2009/207/EC) on the Community trade mark.

  Furthermore, Danish and European case law are of high importance when interpreting the legislation. The following guidance is generally based on the Danish Consolidated Act on Trade Marks (no. 109 of 24 January 2012) which also acknowledges trade mark right through use (unregistered trade marks). For the sake of completeness it should be noted that the Council Regulation (2009/207/ EC) and the Directive (2008/95/EC) will be changed as part of the EU trade mark law reform which enters into force on 23 March 2016. Following adoption of the new directive member states will be granted a certain period to implement the changes in their national legislations.

  In addition hereto, Denmark has also adopted a number of international treaties, including the following: the Paris Convention, the Madrid Protocol, the Nice Arrangement and the Singapore Treaty on the Laws of Trade Marks.

  The order of priority of the sources of law when a conflict arises is national and international legislation, preparatory works, case law and legal literature. In general, national legislation takes precedence over international legislation, however, as an exception, EC Regulations apply directly in Denmark and may thus take priority over national legislation in case of any conflict. Furthermore, Danish courts are obliged to interpret the Consolidated Act on Trade Marks (no. 109 of 24 January 2012) in a manner that conforms to the Directive in case of any ambiguity.

1.2. Substantive Law

The term "famous trade marks" is not a legally recognized term in Denmark, even though sometimes used for or as a collective name for well-known trade marks (as defined in the Paris Convention and TRIPS) and reputed trade marks (as defined in the Consolidated Act on Trade Marks no. 109 of 24 January 2012 and the EC Regulation). On that note, Danish trade mark law provides and grants enhanced protection to well-known trade marks and reputed trade marks compared to trade marks in general. Accordingly, protection of a well-known or reputed trade mark is not limited to those situations where there is a risk of confusion with another trade mark or sign, but instead extended to those situations where use of a sign, designation or trade mark would take unfair advantage of, or be detrimental to the distinctive character or the repute of the reputed or well-known trade mark.

  The Consolidated Act on Trade Marks (no. 109 of 24 January 2012) distinguishes between well-known trade marks and trade marks with a reputation. With respect to well-known trade marks the reputation of said mark must be indisputable in order to be considered a well-known mark. This is not a requirement for a trade mark to enjoy protection as a reputed trade mark even though the owner would have to prove that the trade mark is reputed. In both cases the trade marks enjoy an enhanced protection (see above).

  From a general perspective, trade marks belonging to the "luxury industry" do not enjoy a broader scope of protection than that provided by law and there are no specific provisions in the Danish legislation in this respect. However, an assertion made by the trade mark owner that a certain use of a sign or designation would take unfair advantage of, or be detrimental to the distinctive character or the repute of the trade mark (in case of a reputed trade mark) would probably be considered to carry more merits with respect to luxury brands than with respect to a trade mark used for more standard products (for example,  fast moving consumer products). Accordingly, this may affect the trade mark owner's ability to enforce its trade mark against infringements and ease the burden of proof for the trade mark owner if it can be established that a certain sign or designation takes unfair advantage of the "luxury brand" (for example, in case of products bearing the infringing sign being sold in discount stores or similar).

1.3. Enforcement

It is common in the Danish judicial system to use a wide range of evidence to establish that a trade mark is entitled to broader protection. Essentially, there are no limitations as to the form of evidence as such. Normally, the following types of evidence will be used or relied on in trade mark litigations:

  • written documentation;
  • oral testimony; 
  • expert witnesses, including industry statements; 
  • product samples; and 
  • expert reports.

  Affidavits can be used, however, would generally need to be confirmed and elaborated during an oral testimony.  

  There is no specific test or threshold that must be reached to establish that a trade mark is entitled to broader protection. However, the trade mark owner must be able to show that the trade mark is reputed or well-known. Relevant elements (not exhaustive) for the court's decision would be:

  • reputation; 
  • market share; 
  • intensity of use; 
  • consumer/user perception and brand awareness; and 
  • geographical scope. 

  Pursuant to the Consolidated Act on Trade Marks (no. 109 of 24 January 2012), the owner of a trade mark is entitled to prohibit any person not having the owner's consent from using any sign in the course of trade if:

  • that sign is identical with the trade mark, and the goods or services for which the sign has been put to use are identical with the goods or services for which the trade mark is protected; or 
  • the sign is identical with or similar to the trade mark, and the goods or services are identical or similar, provided that there exists a likelihood of confusion including a likelihood of association with the trade mark.

  Accordingly, if these requirements are met the trade mark owner may prevent the unauthorized use of a domain name, a trade name and any other signs. Furthermore, the trade mark owner may prevent the use of the trade mark as a metatag by someone not authorized, if certain additional requirements are met, including those established by the European Court of Justice. Accordingly, any use of a metatag that seeks to establish a connection with the trade mark owner would constitute infringement.

Danish law only provides the trade mark owner with the right to enforce its trade mark against unauthorized use in the course of trade. In contrary hereto, any use of a trade mark for private purposes cannot be prevented by the trade mark owner. Furthermore, the principle of freedom of speech would also prevent a trade mark owner from enforcing the trade mark against use of the trade mark under certain circumstances. However, use of trade marks on social media is a borderline question and the Danish courts will take all circumstances into consideration when assessing whether a certain use on social media will constitute trade mark infringement or not, including elements such as how the trade mark is used and/or if the use seeks to establish a connection with the trade mark owner.  

Pursuant to the Danish Consolidated Marketing Practices Act (no. 1216 of 25 September 2013), which is partly based on EC directives, comparative advertising is permissible if a number of requirements are met, that is, that the advertisement:

  • is not misleading; 
  • concerns products or services meeting the same needs or intended for the same purpose; 
  • in an objective manner compares one or more specific, relevant, verifiable and representative features of these products and services, which may include prices; 
  • does not create confusion in the market between the advertiser and a competitor or between the advertiser's trade marks, trade names, other distinguishing marks, products or services and those of a competitor; 
  • does not discredit or denigrate the trade marks, trade names, other distinguishing marks, products, services or activities of a competitor; 
  • with respect to products with designation of origin, it relates in each case to products with the same designation; 
  • does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products; and, finally 
  • does not present products or services as imitations or replicas of products or services bearing a protected trade mark.  

If these requirements are met a trade mark owner cannot enforce its trade mark against use hereof in comparative advertising. On the other hand, if these requirements are not met, a trade mark owner may enforce its trade mark against such use in comparative advertising and the advertiser would in that case have infringed the trade mark owner's right and also infringed the Danish Marketing Practices Act (no. 1216 of 25 September 2013).


Pursuant to Danish law, a trade mark owner may enforce its trade mark against unauthorized use in parody, provided that such use causes, or is likely to cause, damage to or be detrimental to the trade mark. The trade mark owner must be able to establish that such damage (or likelihood of damage) exists and that such damage is significant and cannot be disregarded as being non-material. Furthermore, relevant case law shows that the courts will base their decision on (in addition to the above):

  • the level of humour and the context hereof; 
  • the degree of similarity between the sign used and the trade mark; and 
  • the principle of freedom of speech.    

  It is generally permissible under the Danish Administration of Justice Act (no. 1308 of 9 December 2014) to take action claiming both trade mark infringement as well as unfair competition based on the same set of facts. 

2. COPYRIGHT

2.1. Sources of law

The Danish Consolidated Act on Copyright (no. 1144 of 23 October 2014) is the principal source of law relating to copyright in Denmark. Furthermore, Danish and European case law is of high importance when interpreting the legislation. 

  Furthermore, Denmark has adopted a number of international treaties and conventions, for example, the Directive (2001/29/EC) on the harmonization of certain aspects of copyright and related rights in the information society and the Directive (2004/48/EC) on the enforcements of intellectual property rights. Denmark has also adopted a number of directives in relation to cable and satellite transmissions, databases, computer programs, rental and lending rights and use of orphan works. On a more general note, Denmark has also adopted the following: the Berne Convention, the Universal Copyright Convention, the Rome Convention, the WIPO Copyright Treaty, the WIPO Performance and Phonograms Treaty and the TRIPS Agreement.     

When a conflict arises the relevant sources are prioritized as follows: national and international legislation, preparatory works, case law and legal literature. However, as an exception, EC Regulations apply directly in Denmark and may thus take priority over national legislation, and EC Directives may also in certain cases take precedence over national sources (see also 1.1 above). 

2.2. Substantive law

The Danish Consolidated Act on Copyright (no. 1144 of 23 October 2014) protects works that are (in a broad sense) of literary or artistic nature, including industrial designs and software. The moral rights of the author are also protected under Danish law (see below).

  In order to obtain copyright protection, the work has to meet the originality requirement, that is, the work has to be the result of an intellectual creation made by the author and expresses his or her free and creative choices with the exception of "neighbouring rights" (see below). Copyrightable works can either be works that are of a literary or artistic nature. Literary works can be anything that can be expressed in writing whereas works of an artistic nature may be works with a musical or dramatic character. However, as further elaborated below, Danish law also acknowledges copyright in industrial products/designs, provided that such products or designs fulfil the originality requirement. Accordingly, Danish law does not include an exhaustive list of works that may enjoy copyright protection. 

  "Neighbouring rights" do not have to meet the requirement of originality in order to be protected. However, only a selected group of rights are comprised by this definition. The provisions on neighbouring rights encompass:

  • the performance of a copyright protected literary or artistic work by an artist; 
  • recordings of sound and moving pictures; 
  • radio and television programmes; 
  • photographic pictures; and 
  • catalogues and databases. 

Pursuant to Danish law objects of industrial design may be copyrightable, pursuant to the same requirements as other works of an artistic or literary nature, provided that the work is considered "original" and as such expresses an intellectual creation. The scope of protection for industrial designs might, however, be more limited than compared to the protection offered to "classical works of art".

As a general rule, the right to a copyright protected work belongs to the author and any assignment or transfer will require an agreement to that effect between a legal entity (or other assignee or transferee) and the individual author(s). However, an assignment or transfer may be considered implied or follow from the nature of the relationship between an author and the legal entity. For example, in case of an employment relationship, the employer (the legal entity) would as a starting point, unless anything else is agreed, obtain the copyright to a work which was created by the employee (the author), if such work has been made within the ordinary cause of business of the employment and on behalf of the employer (the legal entity). Other rules apply for some types of work, for example, ownership of copyright to computer programmes is provided for in a separate provision of the Act, according to which the employer, as a general rule, will retain the copyright. 

  With respect to consultants, shareholders, suppliers, directors (if not considered employees) the copyright would normally belong to the author, however, the specific nature of or conditions for the relationship may reverse this starting point. The starting point may also be reversed if an implied assignment or transfer can be interpreted into the relationship.

  It would normally be advisable to agree on the specific terms for an assignment or transfer of copyright and not rely on implied terms or the nature of the relationship, if certainty is required. 

  Under Danish law an intellectual property right, whether it is a copyright or any other right, is a proprietary right which the proprietor/author may transfer in full or in part, however, with respect to copyright, the moral rights, for example, droit morale cannot be assigned in full but only to a limited extent. Any assignment or transfer agreement may be made in writing or orally, although the former would be preferable for obvious reasons.

  When drafting an assignment agreement a number of important issues should be considered. The assignment agreement should be very specific as to what part of the intellectual right is being transferred, for example, the whole right or only partially (license, and in this case, the scope and grant hereof), any continued (limited) use by the assignor, whether the assignee may re-assign the right, any warranties from the assignor, indemnities with respect to third party infringements, compensation to be paid to the assignor (if any), ancillary obligations (further severance or perfecting of documentation), and whether any reassignments are allowed. Finally, tax implications should also be considered.

Pursuant to Danish law an author may only to a certain extent transfer his or her moral rights. The moral right of the author cannot be waived except in case of use of the work which is limited in nature and extent.  

The copyright protection will, as a starting point, expire after 70 years of the year of the author's death (50 years in case of photography). If the work has two or more authors the year of death of the last surviving author will be decisive. With respect to cinematographic works, the copyright will last for 70 years after the year of death of the last of the following:

  • the principal director; 
  • the author of the script; 
  • the author of the dialogue; and 
  • the composer of the music specifically created for use in the cinematographic work. 

  If a work is published without naming the author, either by name, generally known pseudonym or signature, the copyright of the work will last for 70 years after the year that the work was made public. When a work consists of volumes, instalments, issues, or episodes, a separate term of protection will run for each of these.

  The copyright for a foreign work is also 70 years in Denmark, unless the period of protection is shorter in the homeland of the work in which case this shorter period of protection will apply.  

2.3. Enforcement

There is no requirement for registration of copyright in Denmark. Copyright exists from the moment the work is created, provided that the work fulfils the originality requirement. Use of the copyright notice © is not a legal requirement in Denmark, even though it may be advisable to include such notice on copyright protected works. 

  It is common in the Danish judicial system to use a wide range of evidence to establish that objects of industrial design are entitled to copyright protection. From a general perspective there are no limitations as to the form of evidence as such. Normally, the following types of evidence will be used or relied on in copyright litigations:

  • written documentation;
  • oral testimony; 
  • expert witnesses, including industry statements; 
  • product samples; and 
  • expert reports. 

  Affidavits can be used, however, would generally need to be confirmed and elaborated during an oral testimony.  

  Infringement of a copyright is assessed by considering whether two works of art appear to have the same abstract identity, that is, whether the alleged infringing work has retained the identity of the original work, which in most cases is a matter of comparing the two works. In addition, the plaintiff must establish that the alleged infringer has been acquainted with the original work before creating the allegedly infringing work. In practice, however, this is often established by a mere comparison of the two works. A high degree of similarity in itself will shift the burden of proof whereby the alleged infringer must then establish that the infringer was not acquainted with the original work and that the allegedly infringing work has been developed independently from the original work.

  As a general rule, the copyright holder has the exclusive right to control the work by reproducing it and by making it available to the public, whether in the original form or in an amended form. Any direct or indirect, temporary or permanent reproduction, in whole or in part, by any means and in any form, will be considered as reproduction and thus infringing the copyright, unless such use is specially exempted in the Consolidated Act on Copyright (no. 1144 of 23 October 2014).

  Copyright may be enforced against unauthorized use in social media; however, the Consolidated Act on Copyright (no. 1144 of 23 October 2014) includes an exemption with respect to use in connection with quotations. Such exemption may be applicable with respect to social media, provided that the requirements under the quotation exemption are complied with, for example, loyal reference to the owner and limited use of the protected work. 

  Pursuant to the Consolidated Marketing Practices Act (no. 1216 of 25 September 2013), comparative advertising between different products or competitors products is permissible if a number of requirements are met (see also 1.3 above). However, use of a copyright protected work in comparative advertising would require that the use hereof is limited and in accordance with good marketing practice and thus falls within the exemptions for copyright use.

  Pursuant to Danish law, copyright protected work cannot be enforced against unauthorized use in parody, provided that such use falls within the definition of "parody" (see also the principles laid down in the decision by the Court of Justice of the European Union in Deckmyn).

  The doctrines of "fair use" or "fair dealing" are generally not applied as such under Danish law. However, Danish law does include similar principles, including the principle of de minimis non curat lex that may allow for a very limited use to be acceptable or due to the identity of the original work not being conveyed to the spectator of the allegedly infringed work of art and the right of use in quotations, as mentioned above.

  Since copyrights are not registered in Denmark, the most common defence is usually to claim that the work, especially with respect to industrial designs, does not meet the originality requirements (unless this is clearly not the case). Secondly, it would normally be argued that there is no infringement on the basis that the scope of protection should be limited (this would be very common with respect to industrial designs). Finally, it is sometimes also argued that the allegedly infringing work has been developed independently from the copyright protected work. Obviously, the more similarity there is between the two works the more difficult this argumentation becomes.

Under Danish law, misconduct of a copyright holder cannot lead to the copyright being unenforceable from a general perspective. However, pursuant to the Statute of Limitation (no. 1063 of 28 August 2013), a claim for damages will generally be time-barred after a three year period. This means that claims for compensation might be time-barred if no action is taken within said period. Furthermore, the general rules regarding time elapse may prevent a copyright owner from enforcing its rights if such right owner has accepted or will be deemed to have accepted use of the copyright protected work by another party.

It is generally permissible under the Danish Administration of Justice Act (no. 1308 of 9 December 2014) to take action claiming both copyright infringement as well as unfair competition and design infringement based on the same set of facts. 

3. DESIGN

3.1. Sources of law

The Consolidated Act on Design (no. 102 of 24 January 2012) and the Council regulation (2002/6/EC) on Community Designs are the primary sources of law in relation to designs in Denmark. Furthermore, Danish case law is of high importance when interpreting the legislation. As mentioned previously Denmark has also adopted the Paris Convention, the TRIPS Agreement and the Locarno Agreement.

  The order of priority is national and international legislation, preparatory works, case law and legal literature. However, as an exception, EC Regulations apply directly and may thus take priority over national legislation and EC Directives may also in certain cases take precedence over national sources.  

3.2. Substantive law

Pursuant to the Consolidated Act on Design (no. 102 of 24 January 2012) a "design" has been defined as the appearance of a product or part of a product resulting from the features of the product itself or its ornamentation, in particular with respect to lines, contours, colors, shape, texture or materials. "Products" has been defined under the Act as being any industrial or handcrafted item, including inter alia parts intended to be assembled into a complex product, and also packaging, get-up, graphic symbols and typographic typefaces, however excluding computer programs. The scope of the protection is centered on the 2 and 3 dimensional elements of the product, for example, the decoration and the ornamentation. This applies to both registered and unregistered designs.

  Pursuant to Danish law a design right may be obtained if the design is new and has an individual character. A design shall be considered new if no identical design has been made available to the public before the date of filing of the application or, if priority is claimed, the date of priority. 

  A design shall be considered to have individual character if the overall impression which the design conveys to the informed user differs from the overall impression conveyed to a user by any design which has been available to the public before the date of filing of the application or, if priority is claimed, the date of priority. 

  There are a number of exceptions. For example, a design right may not be obtained with respect to the features of the appearance of a product which:

  • are solely dictated by the technical function of the product; or 
  • must be reproduced in their exact form and dimensions in order to permit the product to which the design relates to be mechanically connected to or placed in, on, around or against another product so that either product may perform its function. 

Notwithstanding the above, a design right may be obtained to a design which is new and has an individual character, provided that the design allows the multiple assembly or connection of products within a modular system consisting of mutually interchangeable parts. 

The Consolidated Act on Design (no. 102 of 24 January 2012) does not include any rules which regulate the relationship between a legal entity and its employees. Pursuant to case law and legal theory, it is the general rule that the right to a design developed by an employee in the performance of his or her duties, or in accordance with instructions, belongs to the employer. With respect to Community designs and pursuant to the EC regulation, a design right created as part of an employment relationship belongs to the employer.

With respect to consultants, shareholders, suppliers, directors (if not considered employees) the design right would normally belong to the creator. However, the specific nature or conditions of the relationship may change this starting point. The starting point may also be changed if an implied assignment or transfer can be interpreted into the relationship.

It would normally be advisable to agree on the specific terms for an assignment or transfer of a design right and not rely on implied terms or the nature of the relationship.

Any assignment or transfer agreement may be made in writing or orally, although the former would be preferable for obvious reasons.

When drafting a design assignment agreement a number of important issues should be considered. The assignment agreement should be very specific as to what part of the intellectual right is being transferred, for example, the whole right or only partially (license, and in this case, the scope and grant hereof), any continued (limited) use by the assignor, whether the assignee may re-assign the right, any warranties from the assignor, indemnities with respect to third party infringements and so on, compensation to be paid to the assignor (if any), ancillary obligations (further severance or perfecting of documentation), and whether any reassignments are allowed. Finally, tax implications should also be considered.

Pursuant to Danish law, there are no moral rights with respect to design rights, except that the creator may require that his or her name is included in the design register. However, to the extent that the design may be protected by copyright also, the provisions on moral rights with respect to copyright will apply.   

Pursuant to Danish law a design registration is valid for five years from the date of filing the application, however renewable for every fifth year up to a total of 25 years. For "must match" designs, that is a design of a component which is used for the repair of a complex product in order to give the product its original appearance, the design registration can only be upheld for 15 years. 

The unregistered design right is protected for three years after the date it was made public. 

3.3. Enforcement

  Pursuant to Danish law, a registered design may be enforced against other designs or products that do not convey to the informed user a different overall impression. In assessing the scope of protection, the degree of freedom of the designer in developing the design must be taken into consideration. As such, a substantial similarity may be sufficient to establish infringement with respect to a registered design. 

  With respect to unregistered designs, the right holder would have to prove actual copying in order to establish infringement. 

  Pursuant to the Consolidated Act on Design (no. 102 of 24 January 2012), unauthorized use of a design may be prohibited, except in case of private use and acts carried out for experimental purposes. This includes for example, the production, offering, distributing, importing, exporting or use of a product to which a design relates, or stocking such a product for those purposes. 

  If these requirements are fulfilled with respect to any of the listed items or other products, the design owner may enforce its design right against such unauthorized use, unless such use is specially exempted in the Consolidated Act on Design (no. 102 of 24 January 2012) or the EC Regulation.

  A design may also be enforced against its unauthorized use in social media; however, the Consolidated Act on Design (no. 102 of 24 January 2012) and the EC Regulation include a general exemption for use in connection with quotations. Similar considerations as those listed under 2.3 above would apply in this situation.

Pursuant to the Consolidated Marketing Practices Act (no. 1216 of 25 September 2013) comparative advertising between different products or competitors products is permissible if a number of requirements are met (see also 1.3 above). However, use of a design right in comparative advertising would require that the use hereof is limited and in accordance with good marketing practice and thus falls within the exemptions for design use.

There are no rules in the Consolidated Act on Design (no. 102 of 24 January 2012) that prohibits the use of design in parodies, and in general, a rights holder would not be able to prevent such use. Similar considerations as those described in 2.3 above would apply.

  In general, a design right does not comprise features of appearance of a product which are solely dictated by their technical function or which necessarily must be reproduced in their exact form and dimensions in order to permit the product in which the design is incorporated or to which it is applied to be mechanically connected to, or placed in, around or against another product so that either product may perform its function (must fit).

  Pursuant to Danish law, the misconduct of a design owner cannot lead to the design being unenforceable from a general perspective, except if the design owner does not renew the design registration. However, pursuant to the Statute of Limitation (no. 1063 of 28 August 2013), a claim for damages will generally be time-barred after a three year period. This means that claims for compensation might be time-barred if no action is taken within said period. Furthermore, the general rule regarding time elapse may prevent a design owner from enforcing its rights if such rights owner has accepted or will be deemed to have accepted use of the design by another party.   

  It is generally permissible under the Administration of Justice Act (no. 1308 of 9 December 2014) to take action claiming design infringement as well as copyright infringement and unfair competition based on the same set of facts. 

4. RIGHT OF PUBLICITY

5. PRODUCT PLACEMENT

Product placement is permitted under Danish law subject to the fulfilment of certain requirements. In general, all advertising must be made in such a way that it will be understood as advertisement irrespective of its form and medium. Accordingly, a programme featuring product placement would have to inform the viewers/users that advertising has been included within the programme. The same principles apply with respect to references to certain products on blogs, social media, and so on.

  There are certain restrictions with respect to the type of products, for example, tobacco, alcohol and so on, which may not be featured in advertisements. Furthermore, advertisers should show a great deal of care with respect to advertisements aimed at young people under 18 years of age. 

6. . PROTECTION OF CORPORATE IMAGE AND REPUTATION

The right of publicity does, to a certain extent encompass legal entities also. Pursuant to the Marketing Practices Act (no. 1216 of 25 September 2013) legal entities must not use designations that do not belong to them, nor use their own designations in a manner likely to cause confusion with those of others.

  In order to invoke the rights under the Marketing Practices Act (no. 1216 of 25 September 2013) on designations, the designations would have to be distinctive to a certain extent.

  It is generally possible to include specific clauses aimed at protecting the corporate image/reputation of one of the parties in agreements, however, subject to the scrutiny of competition law (see below).   

  As a member state of the EU, Article 101 and 102 of the Treaty on the Functioning of the European Union apply in Denmark. Furthermore, Danish competition law includes identical prohibitions against agreements or actions that may restrict competition or be considered as misuse of a dominant position. Accordingly, the Block Exemption (Commission Regulation (EU) No 330/2010 of 20 April 2010) with respect to vertical agreements applies in Denmark and pursuant to the Block Exemption selective distribution systems are allowed, provided that the specific requirements in the Block Exemption are fulfilled and that the market share does not exceed 30 per cent. On this basis, a restriction on the sale of products to certain re-sellers (that are not part of the selective distribution system) may fall within the Block Exemption, and if these requirements are met, such prohibition on such sales may be allowed. 

  Including a restriction preventing selling below a certain price or to do so outside of specific time periods in an agreement would be considered a "hardcore restriction" and thus not exempted under the Block Exemption (or any other applicable exemption). Furthermore, such a restriction would in general be considered a serious violation of Danish competition law.    

  If the requirements for the application of the Block Exemption are fulfilled, a restriction on the purchase of other suppliers' products, and thus also non original spare parts and components, is allowed.  

  Liquidated damages are generally permissible under Danish law. However, such clauses should be clearly and carefully drafted in order to avoid a declaration of unenforceability by the Danish courts. The protection of a corporate image or reputation would generally be considered a legitimate reason for such clauses. On that note, the amount of liquidated damages should also be carefully considered and the Danish courts will decrease the amount of liquidated damages if the amount is considered to be too high taking all considerations and elements into consideration. 

4.1. Sources of law

Danish law recognizes the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one's identity. This applies to all individuals, however, would, from a general perspective, be more relevant with respect to celebrities or well-known individuals who may enjoy a higher degree of protection in this respect.   

  The principal sources of law in relation to the right of publicity are the Marketing Practices Act (no. 1216 of 25 September 2013), the Consolidated Act on Trade Marks (no. 109 of 24 January 2012), the Act of Names (no. 1098 of 7 October 2014), the Act on Certain Commercial Undertakings (no. 1295 of 15 November 2013), the Media Liability Act (no. 914 of 11 August 2014) and the Penal Code (no. 973 of 9 July 2015). 

4.2. Substantive law

Pursuant to Danish law, the right of publicity is inherent and there are no specific requirements for an individual to enforce his or her right in this respect. However, an individual may not prevent the use of his or her name, for example, in connection with public events, provided that no commercial misuse are taking place and provided that such use would not be considered disloyal towards the individual.

  The right of publicity will survive the death of the individual and the heirs of the deceased individual will succeed in the right of publicity over that individual's name, image, likeness, or other unequivocal aspects of his/her identity. However, use of the name or image of a long-dead person will, as a starting point, not be considered unlawful, provided that such use is not in conflict with general public interests.   

  The right of publicity is a personal right, however, an individual may assign or license his or her name, picture or similar in whole or in part. 

  An individual may license his or her right of publicity and the license may be either exclusive or non-exclusive.

  Any assignment or transfer agreement may be made in writing or orally, although the former would be preferable for obvious reasons.

  When drafting an assignment or license agreement, one should be very specific as to what part of the right that is being transferred, for example, the whole right or only partially (license, and in this case the scope and grant hereof), any continued (limited) use by the assignor, whether the assignee may re-assign the right, any warranties from the assignor, indemnities and so on, compensation to be paid to the assignor (if any), ancillary obligations (further severance or perfecting of documentation), and whether any reassignments are allowed. With respect to right of publicity drafters should also carefully consider the need for provisions setting forth actions and remedies for the individual and the assignee/licensee in case of any abnormal behaviour or similar on the part of the individual or the assignee/licensee which may inflict on either party's interest in being associated with such individual or company, respectively. Finally, tax implications should also be considered.    

  Pursuant to the principle of freedom of contract, any withdrawal of consent would have to be subject to the licence agreement, or if the agreement would be considered invalid and not enforceable pursuant to the Contracts Act (no. 781 of 26 August 1996) or Danish law in general (for example, unfair/unreasonable, against public order, in case of misrepresentation, and so on).  

  The legal consequences of the death of a licensor or assignor will depend on the wording of the license agreement. However, as a general rule, the heirs of the licensor will succeed in the deceased's legal position in terms of rights and obligations. Accordingly, a license agreement will remain in force and bind the successors, unless provided otherwise in the license agreement. In the event the heirs have an independent right over the deceased individual's name, image, likeness, or other unequivocal aspects of identity they would have to respect the assignment or license agreement in this respect.

  Danish law does not provide a fixed period as to when the rights of publicity expire as such, however, the rights of publicity will expire at some point (see above in this section). As a general rule, the rights of publicity will not expire before at least 70 years after the death of the individual in question and this period may in many cases be even longer.  

4.3. Enforcement

The holder of the right of publicity may file a complaint in case of infringement of the right. With respect to the licensee, the general rule would be that it is the right of the licensor to ensure that the right is enforced and maintained. This will, however, depend on the wording of the license agreement. It may be that both the licensee and the licensor have the right to initiate proceedings. 

  Under Danish law, an individual's right of publicity may be enforced only against commercial use, however, this definition is construed rather broadly.
Accordingly, the right may be enforced against not only strict commercial use but also in other circumstances which fall within the borderline of commercial use and editorial use.

  It is not a requirement to prove that an individual's name, image, likeness, or other unequivocal aspects of one's identity have a commercial value to obtain an injunction or other remedies for the unauthorized use; however, it would certainly be an important element and would influence the level of damages awarded.

  It could be argued that public interest and the freedom of speech may allow for inter alia a person's picture or name to be used for other purposes than strict commercial purposes.