What is illegal?

The rules about what is legal or illegal do not entirely correspond within the different types of immaterial 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. You are 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 are not permitted to copy a CD and give it as a gift to your neighbour. Or to copy a CD that you have taken out of the library. Downloads are allowed from those websites only where the work has been made available with the consent of the rights holder.

For more details (in Danish) about the regulation of copyright, please see The Danish Ministry of Culture.

It is important to be aware that right holders can demand destruction of a counterfeit 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 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 1383/2003, 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, 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.

More information on SKAT's procedures is available here.

Destruction of counterfeit goods bought for private use

On 8 November 2011 the Maritime and Commercial Court handed down an important judgment determining that counterfeit goods bought for private use can be destroyed, if the goods are sent from a country outside the EU and the release of the goods is suspended by SKAT according to the EU Customs Regulation 1383/2003.

The judgment of 8 November 2011 determined that although the buyer had not broken the law by buying a counterfeit watch for his private use, the watch should nevertheless be destroyed due to the seller’s infringement of the copyright and trademark rights. The judgment and the court’s accompanying press release are available through this link (in Danish language).

The judgment from the Maritime and Commercial Court was appealed to the Danish Supreme Court on 21 December 2011. It is not yet known, if the Supreme Court will use the opportunity to pose questions to the European Court of Justice concerning the interpretation of the relevant EU legislation. It is also unknown when the final judgment in the case will be delivered. Based on the judgment from the Maritime and Commercial Court, the provisional state of law is that right holders can demand destruction of counterfeit goods bought for private use and detained by SKAT after being sent from a country outside the EU.

Right holders can in such cases demand the counterfeit good destroyed based on the seller’s infringement and also in cases where the buyer has not broken any laws. If the buyer opposes the destruction – eg because the buyer claims the good is original – the right holder must institute legal proceedings against the buyer in order to determine if the good is counterfeit. If a court determines that the good is counterfeit, the right holder can demand its destruction without liability for damages to the buyer. 

Damages 
A person who commits piracy can be sentenced by a court to pay damages. As a rule, damages are calculated on the basis of the loss of the infringed party, but may also include compensation for the unlawful use. Finally, damages may include compensation for non-financial damages.

Sanctions 
A person who commits piracy may also be punished by fine or imprisonment. The penalty for an intentional breach of a copyright, trademark right, design right, patent right of utility model right under aggravating circumstances is 18 months imprisonment. Serious offences are punishable up to six years. The sanctions presuppose that the acts were intentional. However, a grossly negligent act is punishable by fine.  

Importing or dealing with counterfeit medicines is punishable according to the legislation on medicinal products with up to 18 months imprisonment unless a more severe penalty is due in accordance with other regulation.