What is legal and illegal?

Where is the limit?

It is illegal to sell counterfeit and pirated products commercially. On the other hand, it is generally legal to buy counterfeit products for private use - nevertheless there are good reasons to avoid counterfeit and pirated products!

Private use or commercial use
The rules about what is legal or illegal does not entirely correspond within the different types of intellectual property rights.

In relation to trademarks, designs, patents and utility models, it is illegal to exploit the rights commercially without the consent of the rights holder. Commercial exploitation ia includes production, import, export, storage and marketing.

With regard to works protected by copyright, it is illegal to reproduce the work and it is also illegal to make the work publicly available.

For all rights, the general principle is that private use is not prohibited. Thus, it is not illegal for a private person to buy a counterfeit bag and use it for private purposes. However, within the rules on copyright, legal private use has been limited in relation to digital works. For more information about copyright go to stream & download or visit website of The Danish Ministry of Culture.

 

Goods detained by the Danish Customs Agency
It is important to be aware that right holders can demand destruction of a counterfeit or pirated product bought for private use and sent from outside the EU, when the release of the good is suspended by the Danish Customs Agency. This also applies in cases where a consumer has legally bought a counterfeit or pirated good for private use. The destruction will in such cases be based on the seller’s illegal actions.

When a right holder has applied for action by the Danish Customs Agency in relation to goods infringing the right holder’s intellectual property rights and according to the EU Customs Regulation 608/2013, the customs shall suspend the release of goods which customs suspects infringe such rights and hand over the case to the right holder without regard to the number of goods.

If the right holder finds the detained goods to be counterfeit or pirated, it will be up to the right holder to pursue the case and - if necessary - through the court system.

If the right holder chooses to pursue the case, it is relevant to determine if the import took place in the course of trade, which is illegal and can be sanctioned with criminal penalties in the form of a fine or a prison sentence, civil claims for damages and compensation for unlawful use as well as destruction of the goods. The rules on such sanctions are described more detailed below.

A possible discussion about whether or not the goods are imported for commercial purposes. must be conducted with the right holder, as there is no legal basis which allows the Danish Customs Agency to determine this question. In the last instance, it will be a task for the courts to determine – based on the specific facts of the case - if an import has taken place for commercial purposes. The number of imported goods can be an element in this assessment, but will not necessarily be decisive.

In the last instance, the competence to determine the further destiny of the goods – e.g. if they should be destroyed - and who will then bear the costs – lies with the courts.

It is important to be aware that also counterfeit or pirated goods, which the buyer has bought legally for private use, can be destroyed upon detention by the Danish Customs Agency. Further information on this topic is available below.

More information on customs’ procedures is available here.

See 6 good reasons to buy genuine

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Consequences of buying and selling fake products

Although it is not illegal to buy counterfeit or pirated products for private use, you risk that your products will be detained and destroyed by the customs. If you exploit the Intellectual property rights commercially, you run a much higher risk where criminal sanctions and financial compensation can be among the consequences.

Destruction of fake goods bought for private use
On 15 May 2014, the Danish Supreme Court handed down an important judgment determining that counterfeit or pirated goods bought for private use can be destroyed, when the goods are sent from a country outside the EU and the release of the goods is suspended by the Danish customs according to the EU Customs Regulation. Prior to the Supreme Court’s judgment the European Court of Justice (ECJ) was asked to interpret the relevant EU legislation through a preliminary ruling (case C-98/13).

The Supreme Court determined in its judgment of 15 May 2015 (case 361/2011) that the buyer in the case had not breached the law by buying a fake watch for private use, but that the watch should nevertheless be destroyed due to the seller’s infringement of copyright and trademark rights.

On the basis of the above mentioned judgments from the European Court of Justice and the Supreme Court, the legal situation is thus that right holders can demand destruction of counterfeit or pirated goods bought for private use, when such a product has been detained by the customs authorities upon being sent from a country outside the EU. The right holders can in such cases demand destruction based on the seller’s illegal actions and even though the buyer has not broken any laws. If the buyer opposes the destruction – e.g. because the buyer claims the product is genuine – the right holder must institute legal proceedings against the buyer in order to determine if the product is genuine or not. In cases where a court determined that a product is a fake, the right holder can demand destruction without compensation to the buyer.

Damages
IPR infringers can be sentenced by the courts to pay damages. In general, damages are calculated based on the loss suffered by the infringed party, but may also include compensation for the unlawful use. Finally, damages may also cover non-financial damage.

Criminal sanctions
A convicted IPR criminal may also be ordered to pay a fine or sentenced to prison. The sanctions for violating copyright law, trademark law, design law, patent law or utility model law can be an 18-month prison sentence, if the circumstances are aggravating. Severe violations are punishable by prison terms up to 6 years. This presupposes that the violation was intentional. Fines may be given in cases of gross negligence.

See also 6 good reasons to buy genuine products

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Rules and terminology

Read about different types of intellectual property rights.

On this website, we use the terms ”counterfeiting and piracy” about trademarks or products that are too close copies of other businesses’ trademarks or products and that therefore infringe the rights of those businesses.  Such right can eg be trademarks, designs, patents or copyrights.  This type of rights are also called intellectual property rights or in short just IPR or IP-rights. 

Intellectual property rights help promote innovation and creativity in society.
This is because the person or company who creates a work e.g. art, painting, music, literature, invention, design, logo, etc. can obtain an exclusive right for it. The exclusive right allows right holders to earn money on their creation e.g. an inventor can choose to sell the invention to a large company. The exclusive right prevents others from exploiting / stealing the idea without the right holder's permission. The exclusive right lasts for a certain period and can be considered a reward for the creative effort.

The exclusive rights are statutory in several laws, for example the Copyright Act, the Trade Marks Act, the Design Act, the Patent Act, etc. You will find an overview of the laws below.

Copyright includes literary and artistic works, e.g. music, texts and drawings. Software is also copyright-protected. If considered an original work, industrial designs may also be protected by copyright.

Copyright arises through the creation of an original work and cannot be registered in Denmark. Copyright exists for 70 years after the demise of the creator.

Read more about copyright in our FAQ or on the website of the Ministry of Culture.

The purpose of a trademark is to distinguish the products of an enterprise - or the enterprise itself - from those of other enterprises. Trademarks may consist of words, logos, slogans, letter and number combinations, but may also consist in the shape of the goods themselves or their packaging - e.g. a perfume bottle.

A trademark right in Denmark can be obtained by:

  • putting the mark to use in Denmark
  • filing for a Danish national registration
  • filing for a Community Trademark registration (CTM).

The advantages of registration instead of mere use include an easier means of documenting your rights. A trademark is valid for 10 years and may be renewed for 10 years at a time. In principle, a trademark may thus last eternally.

For more information about trademarks, see the website of the Danish Patent and Trademark Office.

Protection of a design pertains to the appearance of the product or a part of the product, e.g. clothes, furniture or the pattern on tissue paper.

Design protection is obtained in Denmark by:

  • putting the design to use in the EU
  • filing for a Danish national registration
  • filing for the registration of a Community Design.

It applies to both the national and the Community design that they are valid for 5 years and may be renewed 4 times - i.e. for a maximum length of protection for 25 years. The unregistered design right is valid for 3 years starting from the publication of the design and this period is not extendable.

More information on designs is available at the website of the Danish Patent and Trademark Office.

A patent is the protection of a technical solution – not the idea as such. For example, patent protection cannot be given to the idea of making wind shield wipers which do not leave streaks. However, patent protection may be awarded to the technical solution which solves the problem of streaks from wind shield wipers.

Patent protection is obtained in Denmark by:

  • applying for and receiving a Danish patent
  • applying for and receiving a patent in Europe (EPO)
  • applying for an international patent and seeking national protection in Denmark (PCT).

The protection of a patent lasts for up to 20 years starting from the date of the application.

Find more information about patents on the website of the Danish Patent and Trademark Office.

The protection of utility models is similar to that of patents, but the purpose of utility model protection is to serve the need for protection of smaller enterprises and of technical inventions which do not quite meet the criteria for patent protection. Utility models are particularly common in relation to agricultural instruments, furniture construction and household articles.

Utility model rights are obtained in Denmark by 

  • filing a Danish national application directly
  • filing an application in Denmark based on an international application.

A utility model registration is valid for 3 years from the date of application and may be renewed for a further 2 periods of 3 and 4 years respectively. The maximum length of protection for a utility model is thus 10 years.

Find more information about utility models on the website of the Danish Patent and trademark Office.

A geographical indication (GI) is a designation used on products that have a specific geographical origin and possess qualities, reputation or characteristics that are essentially attributable to that origin. The origin can be a locality, region or possibly a country. The production of GI products is subject to certification requirements.

GI's can have great commercial value and can be exposed to infringement/counterfeiting and are therefore protected.

For more information on the four EU Regulations, see the website of the Danish Veterinary and Food Administration.

Under certain conditions geographical indications can also be registered as collective marks pursuant to the Act on collective marks. For further information on this subject see the website of the Danish Patent and Trademark Office.

The manufacturing and sale of unauthorized smart cards and cardsharing that gives illegal access to coded television signals is a criminal offense. The ban also applies to personal use of such equipment.

Smart cards and card sharing / Illegal access to TV channels

The law on Radio and Television Operations protects providers of coded radio or television signals against equipment that can provide free access to such payment-based services. Providers of on-demand services are included and thus protected by the law.

The law states that it is illegal to manufacture, import, convert, possess or modify decoders or other decoding equipment if the purpose is to allow unauthorized access to the content of a coded radio or television program. Advertising or similar of such equipment is also not permitted. The prohibition thus applies to both activities that make decoding equipment illegally available to the users, but also the user's actual unauthorized use of such devices.

The regulation will typically affect the use of unauthorized decoding equipment such as unauthorized smart cards that gives illegal access to pay television. But also receiving an encryption code through card sharing services falls under the regulation.

The scope and length of protection is different for the different intellectual property rights. Very often a product is protected by several rights at the same time.

E.g. medicine is a product type that is often protected by several types of rights. The medicine itself may be protected by a patent, partly by a particular method of manufacturing, partly the active substance and partly by the use of the medicine. The design of the medicine can also be protected. Finally, the name of the medicine can be protected as a trademark.

All the intellectual property laws contain criminal sanctions in the form of fines and imprisonment. Severe violations are punishable by imprisonment for up to 6 years.

Quiz

Are you allowed to make a digital copy of a CD you borrowed and took home from the library?

1) Yes, when it's only for you.2) No, this is not allowed