“VANEMÕDE”

• 1. Section 11(1)1) Trade Marks Act (TMA) must be interpreted in such a way that to determine whether a person owns an earlier well-known trade mark, which precludes others from registering the trade mark, it is important to assess whether the trade mark is well-known at the time of the submission of the trade mark registration application submitted by another person or other persons.

• 2. The ownership of the well-known trade mark must also be assessed as on the filing of the application for registration.

• 3. The owner of a well-known trade mark should be determined based on who uses this trade mark in commercial activities to denote goods and services and who the relevant public (i.e. average consumers of these goods and services) associates with this trade mark as a sign of origin.

• 4. The owners of a trade mark can be several persons at the same time. If it is a collective of persons (here: a musical ensemble) who operate under one sign and contribute to achieving the purpose for the sign to become well known, the well-known trade mark may be jointly owned by all those persons (here: the members of the ensemble).

• 5. In the case that an ensemble is created and operates under the leadership of one or a few persons (known as the manager or managers) and the public associates that ensemble with the leading member(s), while the other members change, the trade mark may belong to only one (or several) managing members.

• 6. When a well-known trade mark is jointly owned, consent of all members is necessary to register the trade mark, irrespective of who developed the (ensemble’s) logo and stylistics.

• 7. The level of the possible legal protection of a previous sign, including the possible general recognition of the sign, is only one factor to be taken into account when assessing the bad faith of a registration application, as all factors relevant to the case at hand at the time of filing said application must be taken into account.

• 8. The mere fact that the applicant knew or should have known that a third party, at the time of applying, uses a trade mark for identical or similar goods in a foreign country that can be confused with the trade mark applied for is not sufficient to establish bad faith.

• 9. Bad faith in filing of the application must be assessed as a circumstance precluding the legal protection of the trade mark, regardless of whether the courts consider that the sign applied for was well known at the time of the registration application and irrespective of sole or joint ownership.