NEWSLETTER August 2023

Patent Law

  • The Maritime and Commercial High Court rules preliminary injunction dependent on a security of DKK 1.000.000

On 22 August 2023, the Danish Maritime and Commercial High Court ruled against Mermaid Medical A/S in a matter regarding a preliminary injunction against a shrinking device for the heart valve. The court decided to allow a preliminary injunction dependent on a security of DKK 1.000.000 .

First, the case regarded whether the patent-in-suit named “shrink device for heart valve prosthesis” was valid. The defendant argued for an objection of validity connected to the question of missing basis in relation to the mother patent.

The Court found that Mermaid Medical failed to weaken the presumption of validity that applies in cases regarding preliminary injunctions. Hence, the Court also found that a person skilled in the art would not find that the patent-in-suit lacked basis for the changed patent claims and that the patent-in-suit was valid.

Following this conclusion, the Court had to decide whether Mermaid Medical A/S was infringing the patent-in-suit.  

After an overall assessment, including statements from different experts, the Court found that the concerned products made by Mermaid Medical A/S were infringing the patent-in-suit.

As the plaintiff, however, only succeeded to render the rights to the patent-in-suit probable, the Court found that the preliminary injunction should only be granted dependent on a security of DKK 1.000.000 .

Read the full decision in Danish here.

  • Germany takes the lead for most cases filed at the new Unified Patent Court as the total number of cases initiated reaches 52 in 3 months

3 months after the new Unified Patent Court opened its doors on 1 June, more than 50 cases have been initiated at different divisions around Europe, with Germany being in the lead as the country with the most cases – which, given the number of divisions situated in Germany, was anticipated. Cases have also been filed at the local divisions in Milan, Vienna, Helsinki, The Hague and Paris, as well as at the central division in Paris and the Nordic-Baltic regional division.

Of the 52 cases 35 of them are infringement proceedings, with Panasonic being the claimant in 12 of the cases. The latest case to be filed is a dispute between Agfa and Gucci, which was filed on 16 August. All 35 infringement proceedings can be found in UPC’s case management system, but due to ongoing issues on the UPC website only a few other types of proceedings are visible on the site including 6 revocation actions and 2 applications for provisional measures.

Furthermore, 21 new technically qualified judges have been appointed to the Court, making the total number of technically qualified judges reach 68 - almost twice as many as the 37 appointed legally qualified judges. The 21 new technically qualified judges will all have taken oaths by 5 September – see the list here.

Read more about the UPC here.

Copyright law

  • Preliminary injunction granted: Electrical outlets are protected under the Danish Copyright Act and the Danish Design Act

On 29 August 2023 the Danish Maritime and Commercial High Court decided to grant the plaintiff, Schneider Electric Danmark A/S, a preliminary injunction against the defendant, SG Armaturen A/S’ production, marketing, sale, import and export of a certain design of electrical outlets.

The Court found it probable that the products included in the FUGA-line, produced and sold by the plaintiff, was protected under the Danish Copyright Act, the Danish Design Act and the Danish Marketing practices Act. In this regard the court stated that the technical elements and considerations that was made concerning the appearance of the electrical outlets did not prevent copyright and design rights from being obtained.

Due to the likeness between the products in the FUGA-line and the contested products, the Court found it probable that the contested products constituted an infringement of the plaintiff’s rights.

The preliminary injunction was made dependable on a security of DKK 10.000.000.

Read the full decision in Danish here.

Marketing practices

  • Two Danish companies get fined a total of DKK 675.000 DKK for illegal telemarketing

The Copenhagen district Court ruled in favor of the Consumer Ombudsman’s report to the police and found that marketing and sales made through phone calls were illegal. In a press release, the Consumer Ombudsman emphasizes that telemarketing is prohibited unless the consumer has requested the call.

The companies had obtained the consumers contact information through participation in online contests. The consumers denied to have participated in the contests.  When consumers decline to have taken part in competitions and thereby accepting the call, it is up to the companies to prove that this is the case. The two companies failed to lift the burden of proof.

The court also found that one of the companies, Salesgroup, had misled the consumers by giving the impression that they called on behalf of the consumers current internet provides.

On this basis the companies were fined a total of DKK 675.000.

Read the Consumer Ombudsman’s press release on the judgement in Danish here.

Trade secrets

  • EUIPO releases new report on trade secret litigations in the EU

Taking about 700 EU trials regarding trade secret litigations from 2017 to 2022 into account, EUIPO has published a report on the status of trials regarding trade secrets in the EU.

In short, the report finds that trade secrets litigation diverges significantly across member states, and that disputes tend to be concentrated between employers and employees. Also, the report states that cross-border disputes remain relatively rare as the litigations tend to be national affairs.

Another part of the report provides a qualitative analysis that i.a. discusses the interpretation of the definition of trade secrets, unlawful acts, the measures granted under the Directive, and the principle of proportionality.

Read the report here.