When you turn on your iPhone to change music on Spotify or launch the Netflix app to watch a new episode of a TV show, you encounter several different trademarks without thinking about it. Today, it is no longer an opportunity to go through everyday life without encountering various different brands.
Apple (iPhone), Spotify, and Netflix all have trademarks that you as a consumer can connect their products to. Therefore, today it is crucial that you, as a company, have control over your trademark rights. This is because it can have catastrophic consequences if what makes your company characteristic is copied!
What is a trademark?
A trademark is a hallmark that a consumer associates with your goods and services. For instance, very few people are in doubt about the origin of a product if it is marked with the shape of an apple with a bite taken out. However, a trademark can also be your company name and slogan. Today it is even possible to have a sound, a colour, or a unique scent registered as a trademark.
If you choose to use a trademark when you need to market your business, it will be to your advantage, as the right trademark strategy can increase the value of your business! Your trademark will create an identity and recognizability for your brand among consumers. Likewise, your trademark will allow consumers to differentiate you from your competitors. Furthermore, the trademark can also provide consumers with information on where the service or product comes from.
How does a trademark protect?
By having a trademark, you gain protection for what a consumer must associate you and your company with, e.g. a shape, sound, scent, etc. However, you should be aware that a trademark does not protect your clientele! Your competitors are still allowed to acquire the customer base if they offer better and cheaper goods. However, this must be done in compliance with competition and marketing law regulation.
To register a trademark, the mark must have a distinctive character. It is a fundamental condition for obtaining the protection, and the requirement is implicitly stated in the wording of section 1 and 2 of the Trademarks Act. In addition, you must take all relevant factors into consideration, including how the trademark and the products or services are perceived by a “normally enlightened, reasonably attentive and sufficiently informed average consumer”. Is your product or service particularly luxurious or specialized? Then, of course, the assessment will be directed at the reaction of the relevant customer base.
Likewise, the distinctiveness of your trademark must be at a certain level to function as such. You must, therefore, not use ordinary words and ordinary symbols, basic forms, technically conditioned forms, and the like. This is because it is not in the community best interest if traders gain monopolies through their trademarks and thus severely reduce competition in the market.
How do you acquire a trademark in Denmark?
According to the Danish Trademark Act, you have four different options when you want to acquire a trademark in Denmark. The options when you want to acquire one are as follows:
- Registering with the Danish Patent and Trademark Office, which will give you a Danish registration.
- Putting the trademark into use in this Denmark.
- Registering with the EU Harmonization Office, EUIPO.
- Registering with through WIPO using the Madrid Protocol
Primarily when registering with the Danish Patent and Trademark Office.
If you choose to register a trademark with the Danish Patent and Trademark Office through a trademark application, you must be aware that you must meet three requirements, which are listed below:
- Your trademark must have a distinctive character, and thus your trademark can not just be descriptive
- Your trademark must not mislead consumers or violate Danish law
- Your trademark must not contain official state characteristics
Furthermore, you should check if your desired trademark is available. There are already many registered trademarks in Denmark.
Especially when acquiring the trademark through use in Denmark
If you choose to go this route and achieve your trademark through use, then you need to pay special attention to the challenges associated with this. When you select this method, you must be able to document your use of the trademark and the geographical spread of the mark. In addition, you should be aware that the trademark, according to the Trademarks Act of November 2018, must be more than just locally delimited to create a trademark by using it.
Let our intellectual property experts advise you.
Are you unsure how all this works and which path to choose? Then let the Advokatgruppen’s experts help you! We have lawyers in Horsens, Aarhus and Fredericia, who all have a unique and deep knowledge of trademarks and the importance of these! Did you know that your trademark can be your company’s most important asset? Therefore, contact us for a non-binding and free talk about your trademark.