Descriptiveness and Genericness in Denmark Under Varemærkeloven § 13(1)-(4)

For most applicants in Denmark, the single most common absolute-ground obstacle is Section 13 of the Danish Trade Mark Act. Brand owners often choose marks that communicate product qualities, ingredients, purpose, or market positioning, but the legal system draws a firm line between commercial messaging and a legally protectable source identifier. A sign that merely describes goods or services, or that has become the customary name for them, does not perform the essential trademark function. For businesses investing in packaging, product naming, or regional launch strategies, understanding how Patent- og Varemærkestyrelsen applies descriptiveness and genericness doctrine is therefore critical before filing.

The Legal Framework: Varemærkeloven § 13

• Section 13(1)(2): A mark must possess the necessary distinctive character. Signs lacking the required distinctiveness are refused.
• Section 13(1)(3): Marks consisting exclusively of signs or indications that may serve in trade to designate the kind, quality, quantity, intended purpose, value, geographical origin, time of production, or other characteristics of the goods or services are refused.
• Section 13(1)(4): Marks consisting exclusively of signs or indications which, in ordinary language or according to honest and established trade usage, have become customary designations for the goods or services are refused.
• Section 13(2): A mark otherwise barred under Section 13 may still be registered if, before the filing date, it has acquired the necessary distinctiveness through use.

The Descriptiveness and Genericness Test

The core legal inquiry is whether the relevant Danish public, when encountering the sign in relation to the claimed goods or services, would perceive it primarily as describing a characteristic of those goods or services rather than as indicating commercial origin. Patent- og Varemærkestyrelsen applies this analysis from the perspective of the average consumer of the relevant products, taking into account the language, market context, and normal trade understanding in Denmark.

A sign is descriptive if it immediately and directly conveys information about the product. Examples include words that identify the kind of product, its quality, its ingredients, its intended purpose, or its geographical origin. The test is not limited to literal dictionary definitions. If the sign serves in trade to communicate product characteristics, it falls within Section 13(1)(3).

A sign is generic or customary if it is the ordinary name by which the relevant public knows the goods or services. Genericness under Section 13(1)(4) is more severe than descriptiveness because the term is not merely informative but is itself the product name in ordinary language or established trade usage.

The analysis is made in relation to the specific goods and services claimed. The same word may be arbitrary for one category and descriptive for another. A classic example is that a common noun may be distinctive for unrelated technology services but generic or descriptive for foods or basic commodities.

Denmark also follows the EU-derived principle that a mark may be refused if any one of its possible meanings is descriptive for the relevant goods or services. It is not enough that the sign could also have another, more imaginative meaning if the descriptive meaning will be understood by the relevant public.

Foreign-language words are assessed according to the likely understanding of Danish consumers. English terms, and sometimes German or other widely understood European terms, may be refused if they immediately describe the goods. This is particularly important for international applicants who assume that a non-Danish word avoids objection.

What Patent- og Varemærkestyrelsen Considers Descriptive or Generic

Patent- og Varemærkestyrelsen is moderately strict on descriptive wording and very strict on generic wording. Examiners typically evaluate dictionary meanings, common commercial usage, website evidence, and the obvious semantic content of the sign. They look at the mark as a whole, but if the whole sign is still merely informational, the application will be refused.

In practice, the Office commonly objects to the following categories:

• Nature of the goods: words naming the product itself.
• Quality or characteristics: words such as soft, organic, premium, sugar free, moisture absorbent, and comparable descriptors where used directly.
• Purpose or function: signs describing what the product does or what the service is for.
• Geographical origin: city, region, or country names that describe origin.
• Customary trade terms: wording that traders in the field commonly use to name the goods or services.

The guide notes that stylization or logo treatment does not automatically rescue a descriptive word. If the word element remains immediately descriptive and the figurative presentation is ordinary, the mark is still likely to be refused. A combined mark may only pass if the figurative element is sufficiently distinctive that the mark as a whole creates a source-identifying impression beyond the descriptive wording.

This is where the dominant element doctrine becomes important. If the dominant element in a combined mark is a descriptive word and the design is only decorative or secondary, Patent- og Varemærkestyrelsen will usually continue to view the mark as objectionable. Conversely, if the design element is visually striking and the wording is minor, the combined sign may have better prospects, although the descriptive wording itself will remain weak in scope.

For multilingual marks, examiners ask whether the relevant Danish public will understand the foreign term directly. An English phrase widely used in Denmark may be treated exactly like a Danish descriptor. Transliteration, obvious misspelling, or the addition of punctuation usually will not avoid refusal if the underlying meaning remains clear.

Patent- og Varemærkestyrelsen is also alert to indirect descriptiveness. A sign need not be the only possible product description. It is enough that it may serve, in trade, to designate a characteristic. As a result, applicants should be cautious with laudatory compounds, functional phrases, or sector jargon.

Key Case Law

The source guide identifies limited published Danish case law in this area, but does reference specific practice examples and decisions.

• TRYLLEESKE V65/2009 — refused. The sign was treated as descriptive because it conveyed a direct descriptive meaning for the relevant novelty goods.
• MOISTURE-ABSORB — refused. The wording directly described the product function for silica gel and therefore lacked registrable distinctiveness.

Beyond those examples, the guide states that Danish case law specifically on descriptiveness is sparse in published form. Where local authority is limited, Patent- og Varemærkestyrelsen follows general EU principles on descriptive and customary signs.

The Procedure for Responding to a Descriptiveness or Genericness Refusal

When Patent- og Varemærkestyrelsen issues an absolute-ground objection under Section 13, the response should be structured and evidence-based.

1. Analyze the objection goods by goods

A term may be descriptive for only part of the specification. Limiting the goods or services can narrow the problem and sometimes secure acceptance for the remaining items.

2. Challenge the Office’s interpretation where justified

If the examiner attributes a meaning that Danish consumers would not readily perceive, explain the linguistic, technical, or market context. This is especially relevant for foreign-language wording, niche terminology, or compound expressions.

3. Argue the overall impression of a combined mark

If the application covers a word-and-device mark, explain why the design elements create an independent source-identifying impression. The more distinctive and visually dominant the logo element, the stronger the argument.

4. Submit acquired distinctiveness evidence under Section 13(2)

If the sign has been used extensively before filing, the applicant may overcome the refusal by proving that the relevant Danish public associates the sign with a single commercial source. Useful evidence includes:

• Length and continuity of use: when and how long the mark has been used in Denmark.
• Sales figures: turnover and units sold under the mark.
• Advertising investment: media spend and campaign reach in Denmark.
• Market share evidence: commercial presence relative to the sector.
• Press and media references: independent recognition of the mark.
• Consumer survey evidence: where available and methodologically sound.

5. Consider refiling in stronger form

If the refusal is difficult to overcome, applicants often do better by filing a more distinctive brand, or by protecting a stronger figurative variant while using the descriptive wording more descriptively in commerce.

6. Appeal if the legal position is strong

If Patent- og Varemærkestyrelsen maintains the refusal, the applicant may appeal to Patent- og Varemærkeanknævnet. Appeals are most viable where the Office has overreached on linguistic meaning or where acquired distinctiveness evidence is substantial.

Strategic Recommendations

• Recommendation: Test the mark against each claimed good or service, not in the abstract. Many refusals can be avoided by more precise specification drafting.
• Recommendation: Assume that clear English product descriptors will be understood in Denmark. International branding language is not insulated from Section 13.
• Recommendation: For combined marks, invest in genuinely distinctive graphic design if the wording is commercially important but semantically weak.
• Recommendation: Gather Danish use evidence before filing if the mark may be challenged as descriptive. Section 13(2) only helps if the necessary distinctiveness already exists by the filing date.
• Recommendation: Avoid relying on minor misspellings, hyphenation, or simple stylization. These usually do not change the descriptive analysis.
• Recommendation: Consider a two-track brand strategy: protect a distinctive house mark and use descriptive product wording separately as marketing language.

Common Mistakes

• Mistake: Assuming that if a term is not exactly the product name, it cannot be descriptive. Section 13(1)(3) covers characteristics, function, and purpose as well.
• Mistake: Believing that adding a standard logo or stylized font cures a descriptive word. It usually does not unless the figurative aspect is independently distinctive.
• Mistake: Filing before acquired distinctiveness exists. Section 13(2) requires that distinctiveness through use be established by the filing date.
• Mistake: Ignoring Danish consumer understanding of English or other foreign words. Readily understood foreign descriptors remain vulnerable.
• Mistake: Treating genericness as just a stronger form of descriptiveness that can always be cured. Generic terms are exceptionally difficult to rescue and often function as a fatal obstacle.

Key takeaway: Under Section 13, Denmark refuses signs that inform the public what the goods are or what they are like instead of who they come from. If a brand leans toward descriptive or customary wording, applicants should either strengthen the mark at the outset or prepare substantial evidence that the Danish market already recognizes it as a trademark.