The Trademarks Law Review: Denmark
The Danish trademark registration landscape revolves, for obvious reasons, around the Danish Patent and Trademark Office (DKPTO), which is a competent, efficient and consistent authority.
The Danish enforcement landscape, on the other hand, is much more complex, and as this chapter explains, trademark rights may be enforced in a number of ways in Denmark. Obviously, the Danish courts are the cornerstone of the Danish enforcement landscape, but they do not work alone. For instance, practitioners consider the Danish Complaints Board for Domain Names to be a great alternative to the courts, when trademark disputes involve domain names.
The principal Danish legislation related to trademarks consists of the new Trademarks Act, which came into force on 1 January 2019, and which, inter alia, serves to incorporate the Trademarks Directive into Danish law. In addition, the Registration Order sets out supplementary provisions pertaining primarily to the application for and registration of trademarks in Denmark. Denmark has acceded to the TRIPS Agreement. Also, Denmark has acceded to the WIPO Convention and is a contracting party to numerous WIPO-administered treaties, including, by way of example, the Madrid Protocol and the Paris Convention.
The DKPTO forms part of the Danish Ministry of Industry, Business and Financial Affairs. It works to help companies protect and exploit their ideas and inventions and, according to its 2017 mission statement, aims to be the Danish centre of intellectual property. One of the core tasks of the DKPTO encompasses the activities undertaken in relation to trademarks, including trademark registration in particular. The powers of the DKPTO are primarily set out in the Trademarks Act.
Danish Complaints Board for Domain Names
The Danish Complaints Board for Domain Names (the Complaints Board) hears cases concerning the right to .dk domain names. The Complaints Board claims to be an easy, faster and cheaper alternative to the courts in domain name disputes, and most practitioners would probably agree with this claim. The Complaints Board may, inter alia, decide to suspend, delete or transfer the .dk domain name that is subject to a complaint.
DK Hostmaster maintains the Danish internet infrastructure and administers the database of all .dk domain names on behalf of the Danish government.
Although DK Hostmaster does not hear domain name complaints, such complaints may nevertheless, in certain special situations, be submitted to DK Hostmaster. These special situations include, inter alia, matters concerning typosquatting. Moreover, DK Hostmaster is competent where there is an obvious risk of economic crime, compromising IT equipment or content of a highly offensive nature. Also, DK Hostmaster may act if the domain name is used in connection with manifestly illegal acts or omissions that infringe substantial considerations of security or public interest. In such cases, DK Hostmaster may generally suspend and, subsequently, block or delete a domain name.
The Danish Business Authority
The Danish Business Authority (the Authority) registers the names of companies, including the names of limited companies and private limited companies. All company names must be registered with the Authority. When a company name is registered, the Authority examines whether an identical name is registered. However, the Authority does not examine whether similar names are registered, let alone if identical or confusingly similar trademarks have been registered. As such, the registration of a company name with the Authority does not entail any extinctive acquisition of rights. The Authority does not hear complaints pertaining to the registration of business names. However, if a court of law has concluded that a company name has been registered in violation of Section 2 of the Danish Companies Act, the Authority will remove the name from the register.
iii Substantive law
Registered trademarks are, inter alia, protected pursuant to the Danish Trademarks Act, namely Section 4(2), which implements Article 10(2)(a)-(b) of the Trademarks Directive, and which, pursuant to Subsections 4(2)(1) and 4(2)(2), entitles the proprietor of a trademark to prohibit any person not having consent from using any sign in the course of trade, if the sign is (1) identical to the trademark and is used for identical goods and services; or (2) identical or similar to the trademark, and the goods or services are identical or similar, if there exists a likelihood of confusion, including a likelihood of association with the trademark.
Reputed trademarks enjoy, inter alia, protection pursuant to Section 4(2)(3) of the Trademarks Act, which implements Article 10(2)(c) of the Trademarks Directive, and which stipulates that, regardless of the limitation in Section 4(2)(2) to identical or similar goods and services, the trademark proprietor may also prohibit use for goods or services that are not similar, if the trademark has a reputation in Denmark, and if use would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the trademark.
Collective marks and certification marks
Collective marks and certification marks used to be protected by the Collective Marks Act. However, such marks are now protected under the Trademarks Act.
In Denmark, trademark rights may also be acquired through use in the course of trade. This follows explicitly from Section 3(1)(3) of the Trademarks Act. Under the Former Trademarks Act, which was in force until 31 December 2018, very little was required of the use in terms of intensity, scope, etc., meaning that the use requirement was interpreted leniently by the Danish courts. For instance, even use within a group of companies could qualify as use for the purposes of Section 3(1)(2) of the Former Trademarks Act. However, Section 3(1)(3) of the Trademarks Act now requires that the use must be of more than mere local character. Regardless, the Danish use requirement is still lenient compared to other Member States.
Well-known trademarks – within the meaning of Article 6(b) of the Paris Convention – are, inter alia, protected pursuant to Sections 3(2) and 15(2)(3) of the Trademarks Act.
The first provision ensures that proprietors of well-known trademarks may also invoke Section 4 of the Trademarks Act, among other provisions, meaning, inter alia, that the exclusive rights conferred on the proprietor of a trademark also extend to well-known trademarks.
The latter provision ensures that a mark that is identical or confusingly similar to an earlier trademark that is 'well-known in this country in the meaning stipulated in Article 6(b) of the Paris Convention' is not registrable. Section 15(2)(3) essentially implements Article 5(2)(d) of the Trademarks Directive.
Under the Former Trademarks Act, additional protection was also extended explicitly to reputed well-known trademarks. To be more specific, Section 15(3)(2) stated that a mark was not registrable if it was identical or similar to a well-known trademark within the meaning of Section 15(2)(4) of the Former Trademarks Act, even if it was applied for registration for different goods and services than those for which the mark was well-known, if the use of the earlier mark would imply that there was a connection between the marks, and the use would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the trademark. This provision was worded in accordance with Article 16(3) of the TRIPS Agreement. The wording of the Trademarks Act does not seem to extend similar protection to reputed well-known trademarks, which is slightly odd. Even so, it may be argued that Section 3(2) ensures that such protection is still in place.
Company names may be registered as trademarks in Denmark. Moreover, if use of a company name qualifies as trademark use, trademark rights may also be acquired through use. Outside the world of trademarks, company names are primarily protected pursuant to Section 2 of the Danish Companies Act. Most importantly, Section 2(2) essentially states that company names must differ from other company names registered in the Danish Business Authority's IT system and must not include a family name, company name, distinctive name for real estate, trademark, trade name and the like, which is not the (intellectual) property of the company, or that may cause confusion on the part of the public.
Trade names and business names
As with company names, trade names and business names may qualify for trademark protection without trademark registration, if trademark rights may be said to have been acquired through use. In addition, Section 22 of the Danish Marketing Practices Act, which came into force on 1 July 2017, stipulates that no person carrying on a trade or business shall make use of any trademark or other distinctive business mark to which that person is not legally entitled or make use of his or her own distinctive business marks in a manner likely to cause such marks to be confused with those of other traders.
The provision is intended to offer supplemental protection to Section 4 of the Trademarks Act for marks – or use of marks – that, for whatever reason, do not qualify for trademark protection. As such, the provision is often invoked in trademark disputes. However, at least until the new Trademarks Act came into force, the provision appears to have been gradually 'outmatched' by the Trademarks Act, the Domain Names Act, the Companies Act and other specific legislation. Section 22 is a national Danish rule that does not implement or reflect EU legislation.
The Danish Trademarks Act protects geographical indications in various ways. Sections 10 and 13 stand out. Pursuant to Section 10(1)(2), which implements Article 14(1)(b) of the Trademarks Directive, the proprietor of a trademark shall not be entitled to prohibit a third party from using, in the course of trade, indications concerning geographical origin.
Moreover, pursuant to Section 13(1)(3), which implements Article 4(1)(c) of the Directive, a trademark lacks distinctive character and therefore shall not be subject to registration, if it consists exclusively of signs or indications that may serve, in trade, to designate the geographical origin.
Like many of the intellectual property rights described above, domain names may qualify for trademark protection. Moreover, a domain name may be equivalent to a company name, or it may be protected pursuant to the Danish Marketing Practices Act as a trade name or business name. It may also be a graphical indication. Additionally, the Domain Names Act offers primary protection for domain names or, if domain names are protected by other legislation, supplemental protection. Pursuant to Section 25 of the Domain Names Act, domain name registrants must not register and use internet domain names contrary to good domain name practice. Moreover, registrants must not register and maintain registrations of internet domain names solely for the purpose of selling or renting such domain names to other parties. Section 25 serves as a general clause within the area of domain names and, according to the preparatory works, allows for decision-making out of consideration of fairness.
Registration of marks
i Inherent registrability
In Denmark, trademark applications are filed with the DKPTO. Online application is available, and an application may be filed in English. In the latter case, the application should be accompanied by a Danish translation of the list of goods and services. There is no requirement to appoint a representative in Denmark.
The DKPTO will commence processing of the application once the application fee has been paid. The application fee for an application that covers one class is currently 2,000 kroner. For every additional class, an additional fee of 600 kroner is payable, albeit the fee for the first additional class is only 200 kroner. Additional fees, as of 1 January 2019, may be found on the DKPTO website.
The DKPTO examines whether the formal requirements are satisfied. Also, and perhaps even more interestingly, the DKPTO examines whether there are any absolute grounds for refusing the application.
If the DKPTO finds that the application does not satisfy the formal requirements, or that there are absolute grounds for refusing the application, the DKPTO will inform the applicant thereof. The applicant may then submit its observations, or it may apply for an extension within two months. If no observations are received in due time, or if the applicant fails to apply for an extension, the application is rejected, whether partially or in its entirety.
If no absolute grounds are identified, and all formal requirements are satisfied, the DKPTO proceeds to publish the application (not the registration).
ii Prior rights
The DKPTO first examines for various prior rights in the form of a search report. However, applicants may request that no search report is generated, therefore allowing for fast-track applications. As a third option, applicants may now request that a reasoned search report be generated.
If the applicant does not request that the search report is omitted, the DKPTO will search for prior applied and registered trademarks. And if the applicant has requested a reasoned search report, the report will also include the immediate assessment of the DKPTO. It is important to stress that the regular search reports as well as the reasoned search reports are merely intended to be informative, and that they should not be used as a basis for decisions.
Search reports generated by the DKTO are only informative, meaning that unlike other national or regional trademark offices, the DKPTO will proceed to publish the application, even if conflicting prior rights are identified, unless the applicant decides otherwise.
iii Inter partes proceedings
Historically, anyone could oppose a trademark registration (this was when oppositions targeted registrations rather than applications) in Denmark on the basis of absolute grounds for refusal, while no particular legal interest was required. This is no longer the case. Now, a trademark application may only be opposed on the basis of relative grounds for refusal.
Oppositions claiming relative grounds for refusal may only be submitted by the proprietor of the prior rights on which the opposition is based. An opposition must be filed within two months of the date of publication. This is an absolute deadline.
Anonymous oppositions are not allowed. Moreover, an opposition must be reasoned, although not much is required of the reasoning. The opposition fee (2,500 kroner) may be paid in a number of ways.
In Denmark, revocation and invalidation actions may be submitted to the DKPTO pursuant to Section 34 of the Trademarks Act or, pursuant to Section 33 of the Trademarks Act, to the Danish courts. The starting point is that anyone may apply for revocation or invalidation. However, as is the case with regard to oppositions, it is not possible to base an application on third-party rights. Moreover, the application must be reasoned when filed, and the applicant must pay a fee of 2,500 kroner, which may be paid in a number of ways. If an application is lodged with the Danish courts, the parties will be subject to the rules pertaining to civil procedures.
Any decision rendered by the DKPTO may be appealed to the Board of Appeals for Patents and Trademarks within two months. Moreover, decisions rendered by the DKPTO and the Board of Appeals for Patents and Trademarks may be submitted to the courts. However, decisions rendered by the DKPTO, which may be appealed to the Board of Appeals for Patents and Trademarks, may not be submitted to the courts, before the Board of Appeals for Patents and Trademarks has rendered its decision relative to the appeal.
Trials concerning national trademarks may, at first instance, be submitted to the city courts as well as the Maritime and Commercial High Court, although either party to such a dispute may demand that the case be referred to the Maritime and Commercial High Court.
Disputes concerning EU trademarks must, at first instance, be submitted to the Maritime and Commercial High Court, which has exclusive jurisdiction in such matters.
Judgments in trademark disputes rendered by the city courts may be appealed to the high courts. Certain monetary thresholds apply, but these thresholds are generally not relevant to trademark disputes.
Judgments rendered by the Maritime and Commercial High Court in trademark disputes may be appealed to the high courts. Also, such judgments may be appealed to the Supreme Court if the matter is of principal relevance and is of general significance to the administration of justice and the legal development or has a significant social scope; or if other special reasons justify that the case be heard by the Supreme Court in the second instance.
In addition to ordinary trials, trademark disputes may also be submitted to the courts in the form of preliminary injunction actions. An action for preliminary measures in a trademark dispute may submitted, even if a trial concerning the same dispute is pending. Pursuant to Section 43b of the Trademarks Act, such actions may be submitted to the city courts or the Maritime and Commercial High Court, although either party to such a dispute may demand that the case be referred to the Maritime and Commercial High Court. Section 43b(3) of the Trademarks Act, on the other hand, stipulates that if the preliminary measures are to have effect in all EU Member States, an action for preliminary measures must be submitted to the Maritime and Commercial High Court.
Decisions on preliminary measures rendered by the city courts may be appealed to the high courts, whereas decisions on such measures rendered by the Maritime and Commercial High Court must be appealed to the high courts. If some sort of preliminary measure is awarded, a trial on the merits must be submitted within 14 days.
ii Pre-action conduct
Before civil litigation is commenced, the infringed trademark proprietor will often approach the infringer, often in the form of a cease and desist letter or similar. Obviously, such a letter serves the purpose of avoiding legal proceedings. However, under Danish law there are other advantages to approaching the infringer in this way. First, a cease and desist letter ensures that the infringer may no longer be said to act in good faith. Second, if the trademark proprietor does not approach the infringer, the proprietor risks not being awarded (full) costs, even if the subsequent action for preliminary measures or trial is successful.
No specific legislation covers the sending of cease of desist letters. However, pursuant to Section 126 of the Danish Administration of Justice Act, Danish lawyers must adhere to 'good lawyer conduct'. This means that a lawyer acting on behalf of a trademark proprietor must disclose information essential to the infringer's assessment of risk, including as part of a cease and desist letter.
Before civil litigation is commenced, a trademark proprietor may also apply for the securing of evidence pursuant to Section 653 of the Administration of Justice Act. As opposed to actions for preliminary measures, securing of evidence actions must be submitted to the bailiff's courts.
In Denmark, there are generally three alternatives to civil litigation in trademark disputes, namely arbitration, mediation and court mediation. All share one common characteristic, namely that they only come into play if the parties to a trademark dispute agree to pursue a path that is different from civil litigation.
iii Conduct of proceedings
Discovery and disclosure as part of proceedings
Pursuant to Chapter 29a of the Danish Administration of Justice Act, a party to an intellectual property infringement trial may ask the court to order the opposing party as well as a third party to disclose certain infringement information under certain circumstances, provided that it has already been fully established that an infringement has occurred. In addition, pursuant to Sections 298 and 299, a party to an intellectual property infringement trial may ask the court to order the opposing party as well as a third party to produce evidence, on which the asking party intends to rely. If the opposing counsel fails to comply with such orders, the court may assume that the factual circumstances are as the party asking for disclosure has presented them to the court. If a third party fails to comply, the third party may face various sanctions, including fines. Chapter 29a of the Danish Administration of Justice Act does not apply to actions for preliminary measures.
Submission of legal and factual evidence
In the context of actions for preliminary measures, there are very few restrictions on submissions of legal and factual evidence. In most cases, the courts will allow examinations of party representatives and witnesses, submissions of various documents, submissions of products and other physical forms of evidence, expert opinions (including one-sided expert opinions). However, the court may restrict evidence, which will prolong the injunction case unreasonably.
In the context of trials at first instance, various evidence restrictions apply. First of all, evidence must be submitted within certain time frames that are normally fixed by the courts. Generally, evidence will be allowed, even if it has been obtained illegally.
On the other hand, access to submit expert opinions is restricted in the context of trials. Expert opinions obtained by one party before the trial may, in most cases, be produced as evidence, whereas expert opinions obtained by one party, after the trial is initiated, may not be submitted.
Written and oral proceedings
In Denmark, the starting point is that cases are pleaded orally. Even so, cases may be pleaded in writing, if the parties agree to it, and if special circumstances support that the trial be pleaded in writing. Where the focal point of a trial is one of law and not one of evidence, such a trial may be suitable for pleading in writing.
The starting point is that only lawyers may represent parties at trial. There are exceptions to this starting point, but they are never relevant in the context of trademark disputes. That said, any party may represent itself, himself or herself, although the courts may force such parties to retain legal representation.
In terms of cost recovery, the starting point is that the losing party must cover the costs inflicted by the trial on the winning party, unless the parties have agreed otherwise. This wording might suggest that, in Denmark, trial costs are fully recovered. This is not the case. Out-of-pocket expenses, such as those associated with obtaining an expert opinion before the court, are normally fully covered. However, legal fees are only covered up to an 'appropriate amount', which, in principle, is awarded arbitrarily by the courts. The presidents of the Western and Eastern High Courts have issued a brief on costs in civil trials, which, among other things, contains a table of costs corresponding to the value of the case, which is mostly adhered to.
The Danish Administration of Justice Act does not set out any maximum time frames for civil proceedings.
The Trademarks Act is quite clear about which remedies may be applied for in a regular trial concerning trademark infringements. If a trademark infringement is established, the trademark proprietor may, in accordance with Article 13 of the Enforcement Directive, claim reasonable remuneration and damages. The term 'reasonable remuneration' means a licence fee. Reasonable remuneration may be awarded, even if no loss has been substantiated. On the other hand, damages are only awarded if some sort of (additional) loss may be established
In addition to reasonable remuneration and damages, a trademark proprietor may, inter alia, claim that goods infringing a trademark right be: (1) temporarily withdrawn from the trade; (2) finally withdrawn from the trade; (3) destroyed; or (4) handed over to the trademark proprietor; and (5) that the infringing trademarks be removed.
If, in the context of an action for preliminary measures, a trademark infringement is rendered likely (as opposed to demonstrated), the applicant may ask the court to order that the subject of the action for preliminary measures is ordered to perform, abstain from or withstand certain actions. Moreover, the applicant may ask the court to seize goods that are likely to be used to violate an injunction or an order.
Other enforcement proceedings
Pursuant to Section 42(2) of the Trademarks Act, intentional trademark infringements in aggravating circumstances may result in imprisonment of up to one year and six months, unless a higher penalty is warranted under Section 299b of the Danish Criminal Code. Section 299b of the Criminal Code states that trademark infringements of a particularly serious nature may result in imprisonment for up to six years, if the purpose of the trademark infringement was to obtain unjustified profits or if, regardless of the profits obtained, the circumstances are particularly aggravating. This means that if a trademark proprietor is faced with particularly grave trademark infringements, which fall under the scope of either Section 42(2) of the Trademarks Act or Section 299b of the Criminal Code, the trademark proprietor may report such infringements to the State Prosecutor for Serious Economic and International Crime (SØIK). If following an investigation, SØIK decides to proceed with the charges, the trademark proprietor may, in principle, file a claim for damages as part of the criminal proceedings. However, trademark proprietors often find that the courts decide to carve out claims for damages, leaving it to the trademark proprietors to initiate civil proceedings.
Recent and pending cases
Camilla Kjems v. Foreningen Interflora Danmark and Interflora Danmark A/S
On 16 April 2020, the Eastern High Court ruled, at second instance, in a trademark dispute between the editor-in-chief of Danish weekly magazine Femina (Femina) and Foreningen Interflora Danmark (the Interflora Association) and Interflora Danmark A/S (the Interflora Company) (altogether Interflora). This judgment, as well as the judgment rendered at first instance by the Maritime and Commercial High Court, attracted a great deal of attention in Denmark.
The crux of the matter was whether Femina had infringed Interflora's trademark rights as a result of its use of Interflora's collective mark in Denmark 'Sig det med blomster' (Say it with flowers), and whether there was reason to revoke the collective mark due to a lack of genuine use or as a result of degeneration.
More specifically, Femina had used 'Sig det med blomster' on two occasions, namely next to a picture of a bottle of lemonade and next to a flowered dress. In both cases, the price of the product and the identity of the manufacturer was also indicated. Femina claimed, inter alia, that its use was to be considered 'editorial use' (i.e., not use in the course of trade). Interflora did not agree.
A decision was rendered by the Maritime and Commercial High Court on 2 July 2018. The Maritime and Commercial High Court found that Interflora's collective mark had not degenerated but was in fact reputed in Denmark and therefore enjoyed a wider protection. In this regard, the Court relied heavily on the evidence pertaining to the longstanding use of the trademark in Denmark, including the use undertaken by the Interflora Association at its approximately 350 self-employed members. Moreover, the court relied on a trademark survey produced by Interflora. Furthermore, the Maritime and Commercial High Court found that Femina had used the trademark in the course of trade by using the trademark in direct connection with products while indicating the price of the products and the identity of the manufacturers. The fact that Femina did not receive remuneration from the manufacturers did not affect the outcome. Neither did the fact that the selection and display of the products was considered the result of a journalistic and editorial choice made by Femina. On the other hand, the Maritime and Commercial High Court found that barring the editor-in-chief from any and all use of Interflora's collective mark without the permission of Interflora would unlawfully limit her freedom of speech.
Femina appealed the decision, and the Danish Union of Journalists intervened in support of Femina, claiming that any restriction of the use of 'Sig det med blomster' would limit the freedom of speech.
On 16 April 2020, the Eastern High Court overturned part of the judgment of the Maritime and Commercial High Court. The Eastern High Court agreed with the Maritime and Commercial High Court that Interflora's collective mark had not degenerated. Relative to the question of whether the collective mark had been put to genuine use, the Eastern High Court held that Femina had no legal standing. The Eastern High Court also considered Interflora's collective mark 'Sig det med blomster' to be reputed in relation to selling and delivering flowers.
However, even if the Eastern High Court agreed that the use was to be considered use in the course of trade, it did not consider the use to amount to trademark use. In this regard the Court relied, inter alia, on the fact that Femina had stated under oath that it had not received remuneration for using the products in its magazine. As such, Femina was acquitted in relation to the infringement claim.
On a final note, the Eastern High Court did not agree with the argument of the Danish Union of Journalists that Interflora's enforcement of its rights contravened the basic principle of freedom of speech.
An amendment to the Trademarks Act came into force on 1 January 2019 (the Amendment). The purpose of the Amendment was, inter alia, to implement the Trademarks Directive. While no major upheaval was intended, the Amendment nevertheless introduced a few significant changes, a few of which are described in the following.
Following the entry into force of the Amendment, trademark rights may still be acquired through use in the course of trade. However, the Trademarks Act now explicitly states that such use in the course of trade must be of more than mere local significance. According to the explanatory notes, this is to ensure alignment with Danish case law, which, on numerous occasions, has explained that mere local use of a mark is not sufficient to establish trademark rights through use. Even though the explanatory notes indicate that no material change is intended, this amendment might still end up raising the 'use threshold'. Should this scenario materialise, it would be reasonable to expect that Section 22 of the new Danish Marketing Practices Act, which offers supplementary protection, will become relevant once again, following a period of hibernation. Although a year and a half has now passed, since the Amendment entered into force, it is still too early to conclude, which way the wind is blowing.
Another change relates to the notion of publication. Under the Former Trademarks Act, the DKPTO did not publish the application, but would rather publish the registration in the Danish Trademarks Gazette when a registration certificate was issued. Pursuant to the Trademarks Act, the practice of the DKPTO is now aligned with that of the European Union Intellectual Property Office, meaning that applications, not registrations, are published. From a practical perspective, this is good news. This change in procedure is likely to make it easier for international applicants to grasp the Danish application process, which most trademark advisers have surely already experienced.
Even more importantly, trademark applicants now have three different options when it comes to search reports. First, the applicant may choose not to receive a search report at all. This option is already known from the EU Trademark system, which allows for 'fast-track' applications, provided that certain conditions are satisfied. Second, the applicant may choose to receive a 'regular' search report, which highlights potentially conflicting prior trademark rights to the extent that they are registered or have been applied for. In this regard, the Amendment introduced a limitation. Before, the regular search reports included further relative grounds for refusal. According to the explanatory notes, the underlying reason for this limitation is that the identification of unregistered rights, such as copyrights and portraits, by the DKPTO in its former regular search reports entailed a great deal of uncertainty, making it difficult for applicants to rely on such search reports, just as applicants may have been misled into making unfortunate decisions, such as abandoning an application that should clearly not have been abandoned. Third, applicants may now choose to receive a reasoned search report, if they pay a fee. This initiative was criticised by stakeholders. It was said that just like the former regular search reports, reasoned search reports would provide a false sense of security, considering that many rights will not be considered. Moreover, there is a risk that such reasoned search reports may be misappropriated in legal proceedings, serving as evidence for or against infringements, which could (unintentionally) turn the DKPTO into a source of binding legal opinions.
Regardless of how the Amendment is perceived, it will be interesting to see what its long-term effects will be. Perhaps the concerns of some will turn out to be unfounded, which may very well turn out to be the case. At least as of now, our perception is that not many applicants opt for the reasoned search reports.