What is illegal in Denmark?
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 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 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. It is only allowed to copy a music CD or DVD film, if you own it. Copies must be for your own household only. Any other form of copying, participation in copying or selling of these copies is against the law. For example, you may not copy a CD and give it as a gift to your neighbour or copy a CD borrowed from the library. Download from the Internet is only legal, if the work was made available with the rights holder’s consent.
For more information (in Danish) about copyright, see website of the The Danish Ministry of Culture.
It is important to be aware that right holders can demand destruction of a counterfeit or pirated good bought for private use and sent from outside the EU, when the release of the good is suspended by the Danish customs authorities (SKAT). This also applies in cases where a consumer has legally bought a counterfeit or pirated good for private use. Further information on this topic is available below.
Goods detained by SKAT when imported to Denmark from countries outside the EU
When a right holder has applied for action by SKAT in relation to goods infringing the right holder’s intellectual property rights and according to the EU Customs Regulation 608/2013, SKAT shall suspend the release of goods which SKAT 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 in the course of trade must be conducted with the right holder, as there is no legal basis which allows SKAT to determine this question. In the last instance, it will be a task for the courts to determine – based on the concrete facts of the case - if an import has taken place in the course of trade. 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 – eg 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 goods, which the buyer has bought legally for private use, can be destroyed upon detention by SKAT. Further information on this topic is available below.
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 SKAT (the Danish customs authority) 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 – eg 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 fake, the right holder can demand destruction without compensation to the buyer.
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.
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.
According to legislation on medicinal products, import and trade with counterfeit medicines is punishable by prison terms up to 18 months unless other legislation demands a more severe penalty.