As of January 1, 2016, the Danish PTO will align its practice with that of OHIM and many other European trademark offices. This will imply significant changes to the registration practice in respect of figurative marks with words or device elements that are descriptive or non-distinctive.
Descriptive and non-distinctive words or device elements either refer directly to the nature or characteristic of the goods and services covered by the trademark application, or are commonly used in the trade. For instance, the term “apple” is descriptive for “apples” and for “greengrocery stores”, “Paris” is descriptive for “clothes”. The word “best buy” is non-distinctive for retail and wholesale of goods and the picture of a sardine is non-distinctive for “sardines”.
As a general rule, word marks consisting exclusively of descriptive or non-distinctive terms may neither be registered in Denmark nor elsewhere. However, in Denmark it has so far been possible to register such descriptive or non-distinctive terms together with figurative elements with a very minimum degree of distinctive character. To align its practice with that of many other European trademark registries, the Danish PTO will adopt a far more restrictive registration practice. As a result thereof, it will become more difficult to register such marks, unless the figurative elements are dominant and very distinctive. Full information about the new practice with illustrations can be found here. The new practice has already been implemented in Sweden, Norway and Germany.
If you have a mark which may consist of descriptive or non-distinctive terms, we recommend that you seek registration in Denmark before January 1, 2016. Even if it remains to be seen how conflicts involving such marks will be decided, a weak mark may still be a powerful tool to keep your competitors at distance and defend the exclusive rights to your brand.
Drop us an e-mail or give us a call, and we will advise you on what to do to get your rights protected.