TOPICS:
- LEGAL PROTECTION
- LEGAL PROCEEDINGS
- LICENCES AND FRANCHISES
- AGENCY AND DISTRIBUTION AGREEMENTS
LEGAL PROTECTION
- Patent protection presupposes the issue of a patent (registration), which has been obtained on the basis of an application which has to satisfy a number of requirements. The protection relates to inventions which can be utilized industrially, and which involves a solution to a technical problem. The invention must moreover be novel (novelty requirement) and must differ materially from what was known prior to the filing date (inventive step requirement).Patent protection may be obtained in Denmark, in Europe and in most other countries in the world. Thus, a national system, a regional system and international application systems are in force.
The term of the patent (period of protection) is 20 years from the filing date in most countries. - Utility model protection presupposes a registration obtained on the basis of an application which has to satisfy some requirements. The protection relates to “innovations” (inventions) in the form of products and apparatuses which can be utilized industrially, and which involve a solution to a technical problem. The innovation must moreover be novel (novelty requirement) and must differ clearly from what was known prior to the filing date (inventive step requirement). The inventive step requirement is less stringent than for patents. The utility model registration may therefore be called a petty patent.
Utility model protection may be obtained in Denmark and in a number of other countries, e.g. Finland, France, Italy, Portugal, Spain and Germany. Both a national system and internal application systems are in force.
The period of protection in Denmark is 3 years from the filing date, but may be renewed for two further periods of 3 years and 4 years, respectively, until a total of 10 years. - Product protection (Design protection, Copyright and the Marketing Practices Act)
Protection of the appearance of a product (design) may take place in several ways, of which the most important ones are:
The Designs Act: The Act took effect on 1 October 2001 and replaced the old “Mønsterlov” which, however, still applies to rights applied for/registered before 1 October 2001.
Under the Designs Act, the author of a design may acquire the exclusive right to the design by registration. Protection is given for the appearance of an industrial product and may cover the entire product or parts thereof, including ornaments and decoration of the product. A design may concern both three-dimensional objects (tables, chairs, etc.) and two-dimensional designs (decoration, graphical design, etc.).
The main conditions of having a design registered are that it is novel and has an individual character, including that the design may not be dictated by the technical function of the product, etc.
A registered design has a term of 5 years from the filing date, but may be renewed for further periods of 5 years, until a total of 25 years.
EU design: A distinction is made between the registered EU design and the non-registered EU design. The registered EU design follows the same rules and has the same period of protection as under the Danish Designs Act, except that the protection includes all EU countries, which is of importance, in particular for the countries in which copyright and marketing protection is weak or non-existing.
The EU regulation moreover provides a non-registered exclusive right in all the EU countries. The exclusive right automatically comes into force when the design has been published, e.g. displayed or utilized commercially within the EU. The right has a term of 3 years from the publication and cannot be extended. Thus, the design cannot be registered when 3 years have elapsed, in order to extend the period of protection. On the other hand, an application for registration may be filed within one year of the publication.
Copyright: The appearance (design) of a product may be protected by the Copyright Act without registration, if the product amounts to industrial art. Protection under the Act requires, however, that the design of the product has a certain degree of originality or distinctiveness, while no protection is afforded to products that appear as an essentially unprocessed reproduction of known design or is an adaptation to fashion trends or practical expediency.
The legal protection is the lifespan of the author plus 70 years after the death of the author.
Marketing law: Based on Section 1 of the Marketing Practices Act, comprehensive case law has evolved, affording copy protection for products. In practice, protection under the marketing law has become the most essential supplement to the copyright protection and applies where the originality requirement under the copyright law cannot be satisfied.
The protection begins when the product is introduced to the market and is associated with the trading efforts and the commercial distinctiveness of the product.
The protection applies as long as the product is on the market. - Trade mark protection may be obtained by use and by registration. The registered trade mark affords the best and broadest protection.
A trade mark may be a characteristic which is applied to a commodity or to the package. The trade mark is a signal to the customers of the origin of the commodity and of the company behind the product. Trade marks may also be used by service companies, without necessarily relating to a physical product.
Trade marks may be one or more words, a logo, a figure or a combination of words and figures. It may also be the appearance and package of the commodity. It is just necessary that the trade marks is suitable as a characteristic for the company or its products, and that the trade mark has distinctiveness.
Trade marks are divided into word marks and device marks. The word marks exclusively consist of letters and/or figures in standard typing, while all other marks are generally classified as device marks. A right to a device mark normally just affords the exclusive right to the mark in the concrete device configuration, while a word mark affords an exclusive right to any type of typing with or without figure elements.
Trade mark rights are national, i.e. a trade mark right applies only in the country in which an application has been filed. Companies trading across national borders must therefore decide country by country where they want trade mark protection. Within the EU, however, a EU trade mark registration may be applied for, covering all the EU countries.
Legal proceedings may involve infringement cases, where an owner or a rights holder, e.g. a licensee, considers his exclusive right infringed. It may be an exclusive right based on a patent, a utility model registration, a design, a trade mark, a copyright or a production protection under the marketing law.
Legal proceedings, in infringement cases, will comprise injunction cases and/or lawsuits before the town court, the high court and the Commercial and Maritime Court of Copenhagen. It may also be lawsuits before the EU Court of Justice, if the case involves interpretation of EU rules on which part of the rights are based.
Legal proceedings may also involve the ownership of the right concerned, or be related to whether a registered right is invalid, e.g. a patent, a utility model or a registered design because of a subsequent finding that the registration requirements have not been met.
Legal proceedings may moreover involve the relationship between parties to a contract, such as disagreement between the parties to a licence agreement, a franchise agreement, an agency agreement, a sole distribution agreement, etc.
INTELLECTUAL PROTERY LAW AND MARKETING LAW
LICENCES AND FRANCHISES:
A licence agreement is concluded between a rights holder, called Licensor, and a company, called Licensee, desiring to be allowed to utilize the right in full or in part. Against payment, the licensee is allowed to utilize intellectual property rights (patents, utility model registrations, designs, trade marks, and copyrights) or know-how which the licensee possesses. Payment typically takes place in the form of a licence fee (also called royalty), a lump sum or a combination of both.
For the licensee, the purpose of such an agreement is to get access to technology and products more rapidly than by his own development, or at all. For the licensor, it is a matter of having the technology or the products developed more rapidly than is possible on his own, of getting access to more markets, or of acquiring capital or supplementary earnings.
A franchise agreement is typically a combination of a licence agreement and a sole distribution agreement. The agreement generally contains a licence to trade marks and know-how with a view to use and distribution of commodities which are bought from the franchisor or one or more of his suppliers. In addition to the licence, the franchisor offers commercial or technical assistance to the franchisee during the term of the agreement as part of the business approach to which the franchisee gets access. The franchisee pays a franchise fee for the use of the business approach and the associated trade mark, calculated as a percentage of the franchisee’s turnover of the products concerned.
INTELLECTUAL PROPERTY LAW AND MARKETING LAW
AGENCY AND DISTRIBUTOR AGREEMENTS:
Agency and distributor agreements are commonly used in internal trade and are typically used by a company which wants to sell its products on a foreign market, without having to setup a branch or subsidiary in the market, because the company does not know the market or does not have the financial power to do so. Such a company will use an intermediary, who may either be an agent or a distributor.
Agency agreements and distributor agreements may also be concluded between Danish companies with a view to distribution on the domestic market.
Agency agreements are used in those cases where it is desired to make use of an intermediary who, for the account and in the name of another, is actively engaged in selling (or buying) commodities. Typically, the agent will have an exclusive right to effect sales of the commodities concerned in a geographically limited region. The agent is to visit or approach customers in order to effect a sale, but he cannot sign a contract of sale on his own. The contract of sale must thus be accepted (order confirmation) by the supplier (agency provider). Once the sale has been established, the agent will be rewarded by a commission of the sales sum.
Distributor agreements are established on another legal basis, as the distributor, in his own name and on his own account, sells the supplier’s products, typically within a geographic region. In most cases, the distributor will have the exclusive right to selling to the region concerned. In contrast to the agent, the distributor buys the commodities from the supplier and sells these (at a profit), i.e. on his own account and risk.
In addition to agency agreements and distributor agreements, there are various variants and intermediate forms, e.g. commission agreements and agreements having no associated exclusive right.