Erhvervs-, Vækst- og Eksportudvalget 2015-16
ERU Alm.del Bilag 246
Offentligt
1621559_0001.png
Case Id: f678c766-3356-4bed-961d-2e33fe9c3393
Date: 14/04/2016 15:10:05
Public consultation on the evaluation and modernisation
of the legal framework for the enforcement of intellectual
property rights: Member States
Fields marked with * are mandatory.
Objectives and General Information
The views expressed in this public consultation document may not be interpreted as stating an official
position of the European Commission.
You are invited to read the privacy statement for information on how your personal data and
contribution will be dealt with.
Please complete this section of the public consultation before moving to other sections.
Respondents with disabilities can request the questionnaire in .docx format and send their replies in
email to the following address: [email protected].
If you are an association representing several other organisations and intend to gather the views of
your members by circulating the questionnaire to them, please send us a request in email and we will
send you the questionnaire in .docx format. However, we ask you to introduce the aggregated
answers into EU Survey. In such cases we will not consider answers submitted in other channels
than EU Survey.
If you want to submit position papers or other information in addition to the information you share with
the Commission in EU Survey, please send them to [email protected] and
make reference to the "Case Id" displayed after you have concluded the online questionnaire. This
helps the Commission to properly identify your contribution.
Given the volume of this consultation, you may wish to download a PDF version before responding to
the survey online.
*
Please enter your name/organisation and contact details (address, e-mail, website, phone)
The Danish Government
1
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0002.png
Contant person in relation to this consultation:
Barbara Suhr-Jessen
Chief Legal Adviser
Danish Patent and Trademark Office
Address: Helgeshøj Allé 81, 2630 Taastrup, Denmark
E-mail: [email protected]
Phone: +45 43 50 84 33
www.dkpto.dk
*
Is your organisation registered in the Transparency Register of the European Commission
and the European Parliament?
In the interests of transparency, organisations (including, for example, NGOs, trade associations and
commercial enterprises) are invited to provide the public with relevant information about themselves
by registering in the Interest Representative Register and subscribing to its Code of Conduct.
If you are a registered organisation, please indicate your Register ID number. Your contribution will
then be considered as representing the views of your organisation.
If your organisation is not registered, you have the opportunity to
register now
. Then return to this
page to submit your contribution as a registered organisation.
Submissions from organisations that choose not to register will be treated as 'individual contributions'
unless they are recognized as representative stakeholders via relevant Treaty Provisions.
Yes
No
Non-applicable
transparency, your contribution will be published on the Commission's
*
In the interests ofyou want it to appear?
website. How do
Under the name supplied? (I consent to the publication of all the information in my contribution,
and I declare that none of it is subject to copyright restrictions that would prevent publication.)
Anonymously? (I consent to the publication of all the information in my contribution except my
name/the name of my organisation, and I declare that none of it is subject to copyright
restrictions that would prevent publication).
No publication - your answer will not be published and in principle will not be considered.
"Please note that your answers may be subject to a request for public access to documents
under Regulation (EC) No 1049/2001."
A. Identification
*
Please identify the national authority you are responding for.
2
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0003.png
*
Please identify the national authority you are responding for.
National IP office
National authority responsible for IPR enforcement
Regional authority responsible for IPR enforcement
Other law enforcement authority
Other
National ministry or authority responsible for IPR enforcement policy
*
Please indicate the country of establishment of the authority:
Austria
Italy
Belgium
Bulgaria
Cyprus
Croatia
Czech Republic
Denmark
Estonia
Finland
France
Germany
Greece
Hungary
Ireland
Other
Latvia
Lithuania
Luxembourg
Malta
Netherlands
Poland
Portugal
Romania
Slovakia
Slovenia
Spain
Sweden
United Kingdom
*
Your authority is responsible for the following IPR:
Copyright
Community trademark rights
National trademark rights
Patent rights (including rights derived from
supplementary protection certificates)
Rights of the creator of the topographies of a
semiconductor product
Sui generis right of a database maker
Rights related to copyright
Community design rights
National design rights
Geographical indications
Plant variety rights
Trade names (in so far as these are
protected as exclusive property rights in the
national law concerned)
Other
Utility model rights
All IPR
B. Impact of IP infringing goods and services
*
From your experience, how did the occurrence of IPR infringements develop over last 10
years?
Decreased
Increased
Unchanged
3
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0004.png
Unchanged
Don't know
1500 character(s) maximum
The statistics from the Customs authorities’ and a number of reports published
by eg the European Observatory on Infringements of Intellectual Property
Rights points to the conclusion that IPR infringements have increased over the
last 10 years. At the same time, it is noted that the number of IPR court
cases and injunction cases in Denmark have been stable over the last 10 years.
*
Please specify:
What is your assessment of the impact of IP infringements on government and society?
Very
high
High
Medium
Low
No
impact
*
Loss in tax revenues
*
Health
*
Safety
*
SME
*
Competitiveness
*
Other
C. Functioning of key provisions of Directive 2004/48/EC on the
enforcement of intellectual property rights
This section aims to provide the Commission with stakeholder' views, opinions and information about
the functioning of the overall enforcement framework and of key provisions of IPRED.
C.1. Overall functioning of the enforcement framework
*
Do you think that the existing rules have helped effectively in protecting IP and preventing IP
infringements?
Yes
No
No opinion
1500 character(s) maximum
*
Please explain:
4
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0005.png
The minimum directive has secured a certain level for the IPR enforcement
framework across the EU. However, the member states are interpreting the
provisions somewhat differently. Training seminars (with workshops and cases)
bringing judges from different member states together may be helpful in order
to achieve a more uniform interpretation of the directive across the member
states.
The European Observatory on Infringement of Intellectual Property
rights could be a good forum for such seminars.
C.2. Measures, procedures and remedies provided for by IPRED
Responses to this section should be based on the overall experience with the measures, procedures
and remedies provided for by IPRED as implemented and applied in your jurisdiction. If appropriate
please specify in your response, to the extent possible, particular national issues or practices.
C.2.1. Evidence (Articles 6 and 7)
*
Does IPRED provide for effective means of presenting, obtaining and preserving evidence?
Yes
No
No opinion
Please explain:
1500 character(s) maximum
experience with the
of the rules for having
*
In view of yourpreserving evidence implementation and application application of that
access to and
do you see a need to adjust the
measure, in particular with regard to preserving evidence in the digital environment?
Yes
No
No opinion
C.2.2. Right of information (Article 8)
on the number
filed in your
*
C.4.1. Do you have information infringement of of request for informationthe procedure?
jurisdiction in cases of alleged
IPR and on the length of
Yes
No
information
*
What are the requirements for a request foran infringer? to be proportionate and justified when
exercising the right of information against
1500 character(s) maximum
According to the Danish Administration of Justice Act (AJA), Section 306 (3),
the court partly or wholly refuses a request for information if it is assumed
5
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0006.png
that providing the information would cause the one to whom the request relates
or others, injury or disadvantage which would be disproportionate to the
claimant’s interest in obtaining the information.
information to
*
What are the requirements for a request foranother personbe proportionate and justified when
exercising this right of information against
(e.g. an intermediary)?
1500 character(s) maximum
According to AJA, Section 306 (1), the right of information applies not only
against a counterparty but also third parties. Hence, the requirements for a
request for information to be proportionate and justified when exercising the
right of information against another person (e.g. an intermediary) are the
same as explained above.
1500 character(s) maximum
*
How do you define "commercial scale" in your jurisdiction?
The Danish definition of commercial scale translates into “when part of a
business activity”. The threshold is low, as it does not take much to fall
within this definition.
*
What is the scope of the assessment of the admissibility and the merits of a request for
information?
1500 character(s) maximum
The court carries out a concrete assessment. The court partly or wholly
refuses the request if the request for information is not proportionate and
justified. It is a precondition to admit a request for information that an
infringement must be assumed to exist. Hence, it may be necessary for the
court to examine this issue under a partial decision, cf. AJA Section 253.
*
What is the burden of proof and evidence required to demonstrate the existence of an
infringement?
1500 character(s) maximum
Unless otherwise is stipulated by law there is a free assessment of evidence
under Danish law. However, an infringement, as mentioned in AJA, section 653
(2), must be ascertained to exist in order to obtain information under AJA
section 306.
procedural safeguards in your jurisdiction to ensure the proportionate use,
*
What are the the information for the identification of an infringer and the accuracy and the
relevance of
correctness of the identification of the infringer, in particular when information is to be
provided by a third person, for example an intermediary service provider, for such purposes?
1500 character(s) maximum
6
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0007.png
According to AJA, Section 307 (2), the counterparty and the one to whom the
request relates have the right to comment on the request before the court
makes its decision.
To your knowledge what are the reasons for not obtaining the requested information?
Very
relevant
Unjustified/disproportionate request
Protection of confidentiality of information
Protection of rights to respect for private life
and protection of personal data
Information not available (anymore)
Information provided in the request
inaccurate
Other
Relevant
Less
relevant
Not
relevant
To your knowledge what are the reasons for not making use of the right of information?
Very
relevant
Low probability of success
No judgment on the merits yet
Length of procedure
Court fee
Lawyer's fee and other costs related to
the application
Defendant established in another
Member State
Court in another Member State
Applicable law of another Member State
Other
Relevant
Less
relevant
Not
relevant
of your experience with the implementation and application of the
*
In view think that the existing rules have helped effectively in protecting IPright of information
do you
and preventing IPR
infringements?
Yes
No
No opinion
*
Please explain:
7
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0008.png
1500 character(s) maximum
It is noted that the provisions on the right of information are rarely used in
Denmark.
Instead, the Danish industry generally seems to prefer to use the
measures for preserving evidence (provided in article 7 in the enforcement
directive).
*
Please explain:
of your experience with
the right
*
In view see a need to adjust the the implementation and application ofmeasure? of information
do you
provisions for the application of that
Yes
No
No opinion
1500 character(s) maximum
-
*
Please explain:
a need to clarify the criteria used
the
of the right to
*
Do you see private life/protection of personal to reconcile one requirementseffective remedy on
respect for
data on the
hand and an
the other hand when assessing requests for disclosure of personal data for the purpose of
initiating judicial proceedings?
Yes
No
No opinion
1500 character(s) maximum
There is no need for such clarification in relation to Denmark. If the
situation is different in other member states, if may be an idea to provide
case examples/workshops for judges.
*
Please explain:
C.2.3. Procedures and courts, damages and legal costs (Articles 3, 13 and 14)
the
*
Do you have information onand number of legal action filed in your jurisdiction in cases of
alleged infringement of IPR
on the length of proceedings?
Yes
No
1500 character(s) maximum
*
Please provide detail and reference:
Overview of trademark and patent cases received by the Danish Maritime and
Commercial Court from 2011-2015:
8
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0009.png
Cases received in:
2011: 124 trademark cases and 13 patent cases
2012: 92 trademark cases and 16 patent cases
2013: 89 trademark cases and 19 patent cases
2014: 92 trademark cases and 14 patent cases
2015: 116 trademark cases and 17 patent cases
To your knowledge what are the reasons for taking an infringer to court?
Very
relevant
Damages
Interlocutory injunction
Permanent injunction
Other
Relevant
Less
relevant
Not relevant
500 character(s) maximum
Another motivation could be to encourage a settlement.
An additional motivation can be to obtain a judgment, which can show other
potential infringers that the right owner will not accept IPR infringements,
but will instead fight back rigorously through IPR enforcement actions.
*
Please specify:
legal action
cross-border situation
*
To your knowledge are there problems when takingincorporated in aresident in another
(judicial authority in your jurisdiction and infringer
or
Member State and/or judicial authority of another EU Member State)?
Yes
No
Don't know
To your knowledge what are the reasons for not seeking civil redress?
Very
relevant
High court fees
High lawyer's fees and other costs related to
litigation
Length of procedure
Low probability of obtaining appropriate
compensation for the damages suffered
Low probability of obtaining appropriate
Relevant
Less
relevant
Not
relevant
9
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0010.png
Low probability of obtaining appropriate
compensation of legal costs and other
expenses
Low probability of obtaining a provisional
and/or permanent injunction
Low probability of enforcing the judgment
Court in another Member State
Risk of IPR being invalidated
Protection of confidential information
Perceived lack of independence of courts
Lack of specialisation/expertise in courts
Applicable law of another Member State
Other
*
In your jurisdiction damages compensating for the prejudice suffered as a result of an
infringement can include
Lost profit
Unfair profits
Moral prejudice
Lump sum
Other
in your jurisdiction
*
Is it possibleknowingly facilitatesfor the right holder to claim damages from a third party who
actively and
infringements of IPRs?
Yes
No
Don't know
1500 character(s) maximum
-
*
Please explain:
in view of your
with the implementation and
*
Overall,damages do youexperience the existing rules have helpedapplication of the rules for
setting
think that
effectively in protecting IP
and preventing IPR infringements?
Yes
No
No opinion
1500 character(s) maximum
*
Please explain:
10
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0011.png
-
your experience with the implementation and
for setting
*
In view of do you see a need to adjust the provisions for application of the rulesmeasure?
damages
the application of that
Yes
No
No opinion
*
In your jurisdiction the reimbursement of legal costs incurred by the successful party can
cover
Court fees for instituting proceedings
Other court fees
External expert(s) costs
Other
recoverability of legal costs
*
Are there any limitations on thelaw in your jurisdiction? stipulated in the
legislation/established by case
Yes
No
In-house costs
Attorney's charge
Additional attorney's fees
1500 character(s) maximum
All legal costs actually incurred are not necessarily reimbursed.
AJA Section 312: Unless otherwise agreed by the parties, the unsuccessful
party must compensate the opposing party for the costs incurred as a result of
the action.
(2) In interlocutory appeals against orders and decisions, the unsuccessful
party must compensate the opposing party for the costs incurred as a result of
the interlocutory appeal, unless otherwise agreed by the parties.
(3) However, the court may direct that the unsuccessful party is not to
compensate or is only to partially compensate the opposing party for his costs
if special circumstances so warrant.
(4) If the unsuccessful party has offered the opposing party what is due to
that party, the opposing party must compensate the unsuccessful party for the
costs of the subsequent part of the process. Subsection (3) applies
correspondingly.
(5) If the case is dismissed in its entirety, the plaintiff will be deemed to
have lost the case for the purposes of costs.
(6) If, on appeal, a party is not successful in having the decision under
appeal modified or reversed, such party will be deemed to have lost the appeal
for the purposes of costs.
(7) In the proceedings mentioned in Parts 42, 42a, 43, 43a and 43b neither
party must pay costs to any other party. However, the court may direct a party
to pay costs if special circumstances so warrant.
*
Please explain:
11
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0012.png
Please also see the description of AJA Section 316 supplied in the answer to
the next question.
application of the rules for
*
Overall, in view of your experience with the implementation andrules have helped effectively
the reimbursement of legal costs do you think that the existing
in protecting IP and preventing IPR infringements?
Yes
No
No opinion
1500 character(s) maximum
The following remarks constitutes a continuation of the reply to the previous
question, as sufficent space was not available above:
AJA Section 316: The costs which have been necessary for the adequate conduct
of the case are deemed to constitute recoverable costs. Legal costs or costs
for assistance by a person representing a party under section 260(5) by virtue
of his occupation or under section 260(6) are recoverable by a reasonable
amount, and other costs are recoverable in full.
*
Please explain:
and application of the rules
*
In view of your experience with the implementation adjust the provisions for thefor the
reimbursement of legal costs do you see a need to
application of
that measure?
Yes
No
No opinion
C.2.4. Provisional and precautionary measures and injunctions (Articles 9 and 11)
Provisional and precautionary measures
and precautionary
*
Do you have information on the number of requests for provisional of IPR and on the length of
measures filed in your jurisdiction in cases of alleged infringement
proceedings?
Yes
No
To your knowledge what are the reasons for applying for provisional and precautionary
measures?
Very
relevant
Prevent an imminent infringement
Relevant
Less
relevant
Not
relevant
Forbid the continuation of an alleged
12
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0013.png
Forbid the continuation of an alleged
infringement
Lodging of guarantees
Seizure or delivery up of the goods
suspected of infringing an IPR
Blocking of alleged infringer's bank
accounts and other assets
Precautionary seizure of other movable and
immovable property of the alleged infringer
Other
what are the
*
In your jurisdictionan infringer? requirements to obtain provisional and precautionary
measures against
1500 character(s) maximum
According to AJA, Section 413, a prohibitory or mandatory injunction may be
granted if the party applying for the injunction proves on a balance of
probabilities or by clear and convincing evidence:
(i) that the party holds the right for which protection by way of a
prohibitory or mandatory injunction is sought;
(ii) that the conduct of the opposing party necessitates the granting of the
injunction; and
(iii) that the ability of the party to enforce his right will be lost if the
party has to await a full trial.
According to AJA, Section 414, no prohibitory or mandatory injunction may be
granted if the general provisions of this Act on penalty and compensation and
any security offered by the opposing party are deemed to provide adequate
protection to the party.
(2) The court may refuse to grant a prohibitory or mandatory injunction if
such injunction would cause the opposing party to suffer a detriment or
disadvantage which is clearly disproportionate to the party's interest in
obtaining the injunction.
According to AJA, Section 627, the enforcement court may levy attachment to
secure money claims when
(i) execution cannot be levied regarding the claim, and
(ii) it must be assumed that the possibility of obtaining coverage at a later
point in time would otherwise be significantly impaired
Furthermore, according to AJA, Section 628, attachment cannot be levied when
it must be assumed that the claim does not exist.
jurisdiction
provisional and precautionary measures against an infringer
*
In your only to stop canactual infringement or also to prevent further infringements in be
issued
an
the
future?
Only actual infringement
13
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0014.png
Only actual infringement
Also further infringements in the future
Don't know
*
Do you have in your jurisdiction an out of court procedure for cease and desist notices for
alleged IP infringements?
Yes
No
Don't know
To your knowledge what are the reasons for not obtaining provisional and precautionary
measures against an infringer?
Very
relevant
Insufficient evidence
Measure requested disproportionate
No likelihood of success on the merits of the
case
Protection of confidentiality of information
Protection of the right to respect for private
life and/or a right to protection of personal
data
Request for a security or an equivalent
assurance
No commercial scale infringement
Infringer established in another jurisdiction
Other
Relevant
Less
relevant
Not
relevant
what are the requirements to obtain provisional and precautionary
*
In your jurisdictionan intermediary?
measures against
1500 character(s) maximum
AJA Section 413 on provisional and precautionary measures also applies in
relation to intermediaries. Hence, the requirements are the same as explained
above.
possible
provisional and precautionary measures against
*
Is itinjunction to obtainto an active involvement (responsibility/liability) ofany intermediary or is
an
subject
the intermediary in
the infringement?
Any intermediary
Only intermediaries actively involved in the infringement
Don't know
14
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0015.png
jurisdiction
provisional and precautionary measures against an intermediary
*
In your only to stop canactual infringement or also to prevent further infringements in the be
issued
an
future?
Only actual infringement
Also further infringements in the future
Don't know
define "further
*
How do youobligation in theinfringements" without imposing on intermediaries general
monitoring
meaning of the E-commerce Directive?
1500 character(s) maximum
Such provisional/precautionary measures would concern a specific infringement;
The courts can thus issue a preliminary injunction against an intermediary,
which imposes an obligation on the intermediary to block future access to a
specific website.
To your knowledge what are the reasons for not obtaining provisional and precautionary
measures against an intermediary?
Very
relevant
Insufficient evidence
Measure requested disproportionate
No sufficient link between the intermediary
and the infringement
No likelihood of success on the merits of the
case
Protection of confidentiality of information
Protection of the right to respect for private
life and/or right to protection of personal
data
No commercial scale infringement
Intermediary established in another
jurisdiction
Other
Relevant
Less
relevant
Not
relevant
measures in
*
Are you aware of problems when applying for provisional and precautionary intermediary a
cross-border situation (judicial authority in your jurisdiction and infringer or
established in another Member State and/or judicial authority of another EU Member State)?
Yes
No
*
Are you aware of problems when executing provisional and precautionary measures in a
15
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0016.png
provisional and precautionary measures in a
*
Are you aware of problems when executing another jurisdiction and infringer or intermediary
cross-border situation (judicial authority in
established in your jurisdiction or vice versa)?
Yes
No
To your knowledge what are the reasons for not applying for provisional and precautionary
measures?
Very
relevant
No need for a provisional injunction
High cost of procedure
Excessive security
Length of procedure
Responsible court in another Member
State
Applicable law of another Member
State
Intermediary in question not covered
Other
Relevant
Less
relevant
Not
relevant
500 character(s) maximum
Other reasons are:
The risk to be liable for damages in case the final judgment determines that
the provisional/precautionary measures were not justified.
The industry also refers to the so-called “OHIM bomb”, meaning that in cases
where the right holder seeks an injunction, the alleged infringer can choose
to initiate cancellations proceeding at OHIM (in 3 instances).
*
Please specify:
Injunctions
injunctions filed
*
Do you have information on the number of requests forof proceedings? in your jurisdiction in
cases of alleged infringement of IPR and on the length
Yes
No
1500 character(s) maximum
*
In your jurisdiction what are the requirements to obtain an injunction against an infringer?
16
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0017.png
According to AJA, Section 413, a prohibitory or mandatory injunction may be
granted if the party applying for the injunction proves on a balance of
probabilities or by clear and convincing evidence:
(i) that the party holds the right for which protection by way of a
prohibitory or mandatory injunction is sought;
(ii) that the conduct of the opposing party necessitates the granting of the
injunction; and
(iii) that the ability of the party to enforce his right will be lost if the
party has to await a full trial.
an injunction against an infringer be issued
*
In your jurisdiction can prevent further infringements in the future? only to stop an actual
infringement or also to
Only actual infringement
Also further infringements in the future
Don't know
To your knowledge what are the reasons for not obtaining an injunction against an infringer?
Very
relevant
Insufficient evidence
No sufficient link between the intermediary
and the infringement
Measure requested disproportionate
Protection of confidentiality of information
Protection of the right to respect for private
life and/or right to protection
No commercial scale infringement
Other
Relevant
Less
relevant
Not
relevant
*
In your jurisdiction what are the requirements to obtain an injunction against an
intermediary?
1500 character(s) maximum
AJA Section 413 on injunctions also applies in relation to intermediaries.
Hence, the requirements to obtain an injunction against an intermediary are
the same as explained above.
To your knowledge what are the measures applicants seek to implement when applying for an
injunction against an intermediary with regard to third parties using their services infringing an
IPR?
Very
relevant
Relevant
Less
relevant
Not
relevant
Block access to infringing content online
17
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0018.png
Block access to infringing content online
Stay down of infringing content online
Adopt technical measures such as
filtering
De-indexing infringing websites
Permanent termination of domain
Permanent termination of subscriber
account
Discontinue providing payment services
Discontinue providing advertising
services
Discontinue providing transport services
Discontinue manufacturing of infringing
products
Termination of lease for commercial
premises
Other
*
Is it possible to obtain an injunction against any intermediary or is an injunction subject to an
active involvement (responsibility/liability) of the intermediary in the infringement?
Any intermediary
Only intermediaries actively involved in the infringement
Don't know
an injunction against an intermediary be issued only to stop an actual
*
In your jurisdiction can prevent further infringements in the future?
infringement or also to
Only actual infringement
Also further infringements in the future
Don't know
define "further
*
How do youobligation in theinfringements" without imposing on intermediaries general
monitoring
meaning of the E-commerce Directive?
1500 character(s) maximum
Such an injunction would concern a specific infringement; The courts can thus
issue an injunction against an intermediary, which imposes an obligation on
the intermediary to block future access to a specific website.
your jurisdiction
intermediary
*
Is it possible incontinued access to obtain an injunction against an internetIPR when that
forbidding the
to the material that is allegedly infringing
injunction does not specify the measures which that access provider must take?
Yes
18
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0019.png
Yes
No
Don't know
guarantee
*
How do courtsthe need to the judicial oversight of the measures chosen by the intermediary in
the context of
ensure compliance with the fundamental right of internet users to
freedom of information?
1500 character(s) maximum
The intermediary’s customers can initiate legal proceeding against the
intermediary. During such a case the court will decide, if the measures chosen
by the intermediary went too far.
To your knowledge what are the reasons for not obtaining an injunction against an
intermediary?
Very
relevant
Insufficient evidence
No sufficient link between the intermediary
and the infringement
Measure requested too severe
Protection of confidentiality of information
Protection of the right to respect for private
life and/or right to protection
No commercial scale infringement
Other
Relevant
Less
relevant
Not
relevant
To your knowledge what are the reasons for not applying for an injunction?
Very
relevant
No need for an injunction
Costs of procedure
Length of procedure
Court in another Member State
Applicable law of another Member
State
Intermediary in question not covered
Other
Relevant
Less
relevant
Not
relevant
*
Are you aware of problems when applying for an injunction in a cross-border situation
19
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0020.png
for an injunction in a cross-border
*
Are you aware of problems when applyingintermediary established in another situation State
(judicial authority in your jurisdiction and
Member
and/or judicial authority of another EU Member State)?
Yes
No
cross-border
*
Are you aware of problems when executing an injunction in a established insituation (judicial
authority in another jurisdiction and infringer or intermediary
your jurisdiction
or vice versa)?
Yes
No
experience with the application
for provisional and
*
In view of yourinjunctions do you see a need toof the rulesapplication of these precautionary
measures and
adjust the
measures?
Yes
No
No opinion
*
Should the Directive explicitly establish that all types of intermediaries can be injuncted?
Yes
No
No opinion
1500 character(s) maximum
It is not a problem in Denmark, where all types of intermediaries can be
injuncted. However, as the situation differs across the member states, the
proposed clarification is desirable.
*
Please explain:
explicitly establish that no
*
Should the Directivethe intermediary is required specific liability or responsibility (violation of
any duty of care) of
to issue an injunction?
Yes
No
No opinion
1500 character(s) maximum
.
*
Please explain:
that national courts must be
*
Should the Directive explicitly establishnot only at bringing to an endallowed to order
intermediaries to take measures aimed
infringements already
committed against IPR using their services, but also at preventing further infringements?
Yes
No
No opinion
20
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0021.png
No opinion
1500 character(s) maximum
Please refer to the Danish Government’s reply to the European Commission’s
recent public consultation on online platforms and online intermediaries etc.
The reply describes the Danish Government’s view on the role of intermediaries
and provides suggestions for future initiatives.
*
Please explain:
that
*
In to berespect should the Directive establish criteria on how preventing further infringements
is
undertaken (without establishing a general monitoring obligation under the
E-Commerce Directive)?
Yes
No
No opinion
1500 character(s) maximum
-
*
Please explain:
*
Do you see a need for criteria defining the proportionality of an injunction?
Yes
No
No opinion
1500 character(s) maximum
Looking at Denmark, there is no need for such a clarification. The system
functions well in Denmark.
*
Please explain:
*
Do you see a need for a definition of the term "intermediary"?
Yes
No
No opinion
1500 character(s) maximum
We find that the term “intermediary” is sufficiently precise, while at the
same time being fit for future developments.
*
Please explain:
a need for a clarification on how to balance the effective
*
Do you seeand the right to freedom of information of users in case ofimplementation of an or
injunction
a provisional measure
injunction prohibiting an internet service provider from allowing its customers access to
21
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0022.png
injunction prohibiting an internet service provider from allowing its customers access to
allegedly IPR infringing material without specifying the measures which that service provider
must take?
Yes
No
No opinion
1500 character(s) maximum
Looking at Denmark, there is no need for such a clarification.
*
Please explain:
for other amendments to the provisions on provisional and precautionary
*
Do you see a needinjunctions?
measures and on
Yes
No
No opinion
C.2.5. Publication of judicial decisions (Article 15)
*
Are judicial decisions related to the enforcement of intellectual property rights publicly
available in your jurisdiction?
Yes
No
Don't know
1500 character(s) maximum
*
Please provide detail and reference:
Most civil IPR cases are handled by the Maritime and Commercial Court. Its
judgments are publically available on the court’s website. In addition, The
Danish Ministerial Network on IPR Infringements has established an online
database containing the judgment in criminal IPR cases (available at
www.stoppiratkopiering.dk).
your knowledge do parties usually
*
Toan IPR the decision to be published request in legal proceedings instituted for infringement
of
in full or in part?
Yes
No
Don't know
Please specify:
1500 character(s) maximum
In most cases, this measure is not requested.
*
Do you see a need for / added value in a more systematic dissemination of the information
22
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0023.png
systematic dissemination of the information
*
Do you see a need for / added value in a moreinstituted for infringement of an IPR?
concerning the decision in legal proceedings
Yes
No
No opinion
Please explain:
1500 character(s) maximum
It is noted that the dissemination is already systematic in Denmark. It would
be preferable to have a systematic dissemination in all member states.
C.2.6. Other issues
1500 character(s) maximum
-
*
Please explain:
*
Are there any other provisions of the Directive which, in your view, would need to be
improved?
Yes
No
No opinion
D. Issues outside the scope of the current legal framework
D.1. Intermediaries
between need to effectively
*
Do you think that the existing rules strike the right balance protect fundamental rights
protect IP and preventing IP infringements and the need to
including the right to respect for private life, the right to protection of personal data, the
freedom to conduct a business as well as the freedom of information?
Yes
No
No opinion
*
Do you believe that intermediary service providers should play an important role in enforcing
IPR?
Yes
No
No opinion
*
In your opinion which intermediaries are best placed to prevent infringements of IPR?
23
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0024.png
For the purpose of this consultation:
"Advertising service provider"
Advertising agencies, advertising broker
"Contract manufacturing service provider"
Contract manufacturing is an outsourcing of certain production activities previously performed by the manufacturer to a third-party.
This may concern certain components for the product or the assembly of the whole product.
"Business-to-business data storage provider"
Data storage space and related management services for commercial user.
"Business-to-consumer data storage provider"
File-storing or file-sharing services for personal media files and data
"Content hosting platform"
Platforms providing to the user access to audio and video files, images or text documents.
"Press and media company"
Newspaper, broadcaster
Advertising service provider
Business-to-consumer data storage provider
Contract manufacturing service provider
Domain name registrar
Internet Access Provider
Online marketplace
Payment service provider
Retailer
Social media platform
Wholesaler
Business-to-business data storage provider
Content hosting platform
DNS hosting service provider
Domain name registry
Mobile apps marketplace
Other
Press and media company
Search engine
Transport and logistics company
500 character(s) maximum
All intermediaries could be relevant.
*
Please specify:
*
Do you have in your jurisdiction a legal obligation for intermediaries to engage in the
prevention of IPR infringements?
Yes
No
Don't know
*
Do you facilitate voluntary cooperation between rightholders and intermediaries in the
protection and enforcement of IPR in your jurisdiction?
Yes
No
Don't know
*
For which intermediaries?
Advertising service provider
Business-to-business data storage provider
24
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0025.png
Advertising service provider
Business-to-consumer data storage provider
Contract manufacturing service provider
Domain name registrar
Internet Access Provider
Online marketplace
Payment service provider
Retailer
Social media platform
Wholesaler
Business-to-business data storage provider
Content hosting platform
DNS hosting service provider
Domain name registry
Mobile apps marketplace
Other
Press and media company
Search engine
Transport and logistics company
500 character(s) maximum
In 2014-15 the Danish Ministry of Culture held a series of meeting (“the
Dialogue Forum”) which aimed to promote the cooperation between right holders
and intermediaries in the protection and enforcement of especially copyright
and related right in Danmark. Most of the intermediaries listed above were
present. A number of working groups have been established with the aim of
mapping existing voluntary coorperation schemes and discussing the possibility
of developing new schemes.
*
Please specify:
*
Which IPR are covered by these voluntary cooperation schemes?
Copyright
Community trademark rights
National trademark rights
Patent rights (including rights derived from
supplementary protection certificates)
Rights of the creator of the topographies of a
semiconductor product
Sui generis right of a database maker
Rights related to copyright
Community design rights
National design rights
Geographical indications
Plant variety rights
Trade names (in so far as these are
protected as exclusive property rights in the
national law concerned)
Other
Don't know
Utility model rights
All IPR
500 character(s) maximum
Currently the Danish right holders and most ISPs have entered into a specific
agreement concerning blocking of websites. The agreement regarding blocking of
websites does not specifically specify the covered IP-rights, but does
primarily relate to copyright and related rights. Blocking of websites can
also affect other type of rights, e.g. trademarks.
*
Please specify:
*
Do you consider voluntary cooperation between rightholders and intermediaries successful?
Yes
No
25
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0026.png
No
No opinion
*
What are the essential elements for a successful voluntary cooperation between rightholders
and intermediaries?
1500 character(s) maximum
In Denmark, the following factors have been particularly important in the
successful voluntary cooperation between right holders and intermediaries:
•
•
•
Focus on the common interests of the right holders and the
Involvement of parties from all parts of the value chain.
Political backup from the government.
intermediaries instead of on the differences between them.
involvement of intermediary service providers in enforcing
*
In your opinion does theavoluntary impact on fundamental rights?
IPR have or might have negative
Yes
No
No opinion
*
In view of your experience which model would you consider most efficient for the involvement
of intermediaries in the prevention of IPR infringements?
Voluntary cooperation between rightholders and intermediaries (partners adopt amongst
themselves and for themselves common guidelines at European level (particularly codes of
practice or sectoral agreements)
Co-regulation (basic principles laid down in a legislative act and entrusting the attainment of the
objectives defined to the partners)
Statutory cooperation
Other model
No opinion
D.2. Specialised courts
*
Do you have in your jurisdiction dedicated courts, courts' chamber or judges specialised in IP
matters?
Yes
No
Don't know
1500 character(s) maximum
Each party to an IPR dispute can demand that the case is handled by The
Maritime and Commercial Court.
In the area of copyright users and collective right management organisations
can use the Danish Copyright Tribunal to settle some disputes related to the
*
Please provide detail:
26
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0027.png
size of the tariffs etc. A decision of the tribunal does not exclude the
parties from using the regular court system.
*
Which IPR are covered by the competence of the court?
Copyright
Community trademark rights
National trademark rights
Patent rights (including rights derived from
supplementary protection certificates)
Rights of the creator of the topographies of a
semiconductor product
Sui generis right of a database maker
Rights related to copyright
Community design rights
National design rights
Geographical indications
Plant variety rights
Trade names (in so far as these are
protected as exclusive property rights in the
national law concerned)
Other
Don't know
Utility model rights
All IPR
legal action at a court specialised in IPR matters provide an added value compared to
*
Does actions at other courts?
legal
Yes
No
No opinion
*
What is the added value?
Lower costs
Shorter lengths of proceedings
Court proceedings more fit-for-purpose
Better quality of the court decision
Other
D.3 Other issues
you identify any other issue outside
the current legal framework
*
Do considered in view of the intention tothe scope ofthe enforcement of IPR? that should
be
modernise
Yes
No
3000 character(s) maximum
Please refer to the Danish Government’s reply to the European Commission’s
recent public consultation on online platforms and online intermediaries etc.
The reply supports that the Commission analyses the need for new proposals to
enhance the intermediaries’ use of effective notice and action mechanisms for
removing illegal online content. The reply also invites the European
Commission to provide guidance to intermediaries on how best to implement
*
Please explain:
27
 ERU, Alm.del - 2015-16 - Bilag 246: Notat om det danske høringssvar til Europa-Kommissionens høring om IPR-håndhævelse, fra erhvervs- og vækstministeren
1621559_0028.png
efficient and cost-effective procedures. The reply further invites the
Commission to consider and provide guidance on how a notifying party can
present its notifications in order for them to be dealt with in a simple way.
E. Other comments
*
Do you have any other comments?
Yes
No
Useful links
Enforcement of intellectual property rights
(http://ec.europa.eu/growth/industry/intellectual-property/enforcement/index_en.htm )
The Single Market Strategy (http://europa.eu/rapid/press-release_MEMO-15-5910_en.htm )
The Digital Single Market Strategy (http://europa.eu/rapid/press-release_MEMO-15-4920_en.htm )
Background Documents
[DE] Hintergrund (/eusurvey/files/eed130c7-c2e2-4aa3-a725-834e6ac65582)
[EN] Background information (/eusurvey/files/59cc0502-e708-42a1-9f60-e6ac0d3ce7b2)
[EN] Privacy statement (/eusurvey/files/0e48e217-2a0e-4baa-b1c6-0a7f6b6a72de)
[ES] Antecedentes (/eusurvey/files/c98964c8-7868-4ed6-a486-3ed15857f6aa)
[ES] Declaracin de confidencialidad (/eusurvey/files/dcc62c7a-8fd0-4cb4-b318-c2394bc78ab0)
[FR] Contexte (/eusurvey/files/7954e368-34d3-4f77-949c-475054252ed7)
[FR] Dclaration relative la protection de la vie prive (/eusurvey/files/d44e8537-f2d0-4a2b-9ecb-705320173268)
[IT] Contesto (/eusurvey/files/cf4c0c14-5709-4a64-80fe-39c291450049)
[IT] Informativa sulla privacy (/eusurvey/files/99946082-57c7-4e0d-be6b-1e67556fb530)
[PL] Kontekst (/eusurvey/files/b248e5cc-33b6-4350-aa31-930b40ecd046)
[PL] Oświadczenie o ochronie prywatności (/eusurvey/files/5dcc83aa-d6fb-43dc-9acd-327a913d35aa)
Contact
[email protected]
28