With thanks to Hanne Kirk and her team at Gorrissen Federspiel (Denmark) for their overview of a fascinating case that may have passed readers by:

As 2019 passes and 2020 begins, this GuestKat has one more post to share about an interesting Danish decision handed down in July, then neglected and almost forgotten during the summer heat.

Located in Copenhagen’s historical Charlottenborg Palace, Kunsthal Charlottenborg is one of the largest and most beautiful exhibition spaces for contemporary art in Northern Europe. On 20 June 2017, the United Nations International Refugee Day, it also became the backdrop of an art installation by infamous Chinese artist and activist Ai Weiwei, as he covered the building’s façade with more than 3,500 salvaged life jackets to form an artwork titled Soleil Levant (Rising Sun).

[From the Kunsthal Charlottenborg website, we learn that the name ‘Soleil Levant’ “stems from Claude Monet’s painting Impression, Soleil Levant from 1872, which depicts the harbour in Le Havre at the end of the 1870-71 Franco-Prussian war. Whereas Monet’s landscape painting captures the political and social reality of its time with its cranes, steamboats and industrialisation, Ai Weiwei’s Soleil Levant draws attention to the political and social reality of today through refugee lifejackets.”]

The life jackets had been collected from refugees who had reached Europe via the Greek island of Lesbos, and Ai Weiwei’s stated intention behind the installation was to shine a light on the humanitarian crisis sweeping the continent as thousands of refugees arrived, having fled their homes in the search of a better life.


In August 2017, the Danish Volkswagen importer (‘Volkswagen’) took a photo of the new Volkswagen Polo, conveniently parked in front of the Charlottenborg Palace. Ai Weiwei’s Soleil Levant installation, on display until 1 October 2017, featured in the background.

Without permission from either Ai Weiwei or Kunsthal Charlottenborg, the photo was then used by Volkswagen in a marketing campaign for the Polo, including appearances in a print car magazine and on the Danish Volkswagen website.


The campaign caused Ai Weiwei to file a lawsuit against Volkswagen at the District Court of Glostrup. (It is worth noting that, due to the principled nature of the case, it was heard by a panel of three judges rather than the usual one.)

Before the court, Ai Weiwei claimed that Volkswagen’s photo violated his rights as an artist, damaged his credibility, and, worst of all, damaged the artwork itself, as well as the general understanding of human rights and the public’s view of refugees and their situation.

The photographer, on the other hand, explained that he had no idea the installation was even an artwork, and that he had no prior knowledge of either Ai Weiwei or Kunsthal Charlottenborg. That was why, he explained, he had not asked for permission, as was otherwise standard procedure within the Volkswagen organization.

Ai Weiwei claimed that his copyrights (including both financial and moral rights) had been violated, and that Volkswagen had free-ridden on his reputation and goodwill, thereby making improper use of his artwork in the marketing campaign. Volkswagen acknowledged that a copyright infringement had taken place, but denied having additionally violated “good marketing practice” under the Danish Marketing Practices Act. Volkswagen further denied that the infringement had resulted from either intent or gross negligence.

The court ruled in favor of Ai Weiwei, agreeing both that the photo had clearly been used for marketing purposes and that Volkswagen had free-ridden on the Ai Weiwei brand. Furthermore, the court found that the photographer was, at the minimum, guilty of gross negligence. In reaching this conclusion, the court observed, inter alia, that (i) the façade of Kunsthal Charlottenborg carried two large signs (80 x 120 cm) informing of the Ai Weiwei exhibition, and (ii) the exhibition had been the subject of massive media covered in June and July 2017.

As for the measure of damages to Ai Weiwei, the court’s decision is favorable and seems, perhaps, to break with the Danish courts’ general tradition of modesty in awarding damages for IP infringements. Copyright violations and acting against ‘good marketing practice’ each give rise to (i) ‘reasonable remuneration’ to the infringed party for the exploitation and (ii) ‘damages’ for any additional losses. Furthermore, (iii) compensation for non-financial losses (e.g. droit moral infringements and the like) is entitled in the Danish Act on Copyright. The basis for the measure of ‘reasonable remuneration’ is the usual fee payable by the infringer for its use of the intellectual property right – provided that such a ‘usual fee’ exists.

In the case of Ai Weiwei vs. Volkswagen, it was clear that Ai Weiwei never would have accepted Volkswagen’s use of his artwork for commercial purposes, and a ‘usual fee’ could therefore not be identified. Instead, the court resorted to a discretionary assessment, taking into consideration that (i) the car magazine in which the photo was published had been printed in 216,500 copies, (ii) the photo had been visible on Volkswagen’s Danish website from 31 October until 28 November 2017, and (iii) an assessment prepared by Sotheby’s suggested that a grant of permission to use the artwork for commercial purposes would be valued at 600,000 USD.

In the end, the Danish court awarded Ai Weiwei a total 1,750,000 DKK (USD 260,000) in remuneration and damages, 250,000 DKK (USD 40,000) of which was for non-financial losses.

Finally: Volkswagen has appealed the decision to the High Court of Eastern Denmark. This GuestKat assumes that the appeal is driven mainly by the measure of damages. Nevertheless, she has her fingers crossed for Ai Weiwei.

With thanks to Hanne Kirk and her team at Gorrissen Federspiel (Denmark):

“Something is rotten in the state of Denmark” - so were the words of Marcellus in Shakespeare’s Hamlet. He could have very well been speaking about the Danish court system in 2019. This may be stretching the point a bit, but the fact remains, nevertheless, that Danish companies are increasingly turning their backs on the legal system. From 2010 until now, the number of lawsuits filed before the Danish district courts has been reduced by half.

A (partial) explanation for the trend away from civil lawsuits may be found in the limited level of costs recovery granted to the winning party. In Denmark, the losing party in a lawsuit is required only to reimburse the winner for costs “which have been necessary for the adequate conduct of the case” – and this assessment is left to the court’s discretion. Costs awards are therefore generally granted for amounts far less than the actual costs incurred.

With a new decision issued on 29 August 2019 by the Danish Eastern High Court (Danish only), the tides may now be turning. A new precedent may just have been set for the recovery of a party’s costs incurred by the use of experts, including European Patent Attorneys, and not least for legal costs recovery in general in Danish patent disputes. European Patent Attorneys, in particular, are often brought as expert witnesses by the parties, and their statements and testimonies (although admitted as evidence of a party rather than as impartial expert statements) tend to be regarded as highly persuasive.

The case concerned the companies Gilead and Sandoz who had been in a legal dispute over a potential infringement of Gilead’s patent for the products “Emtricitabin and Tenofovirdisoproxil (as fumerat)”. Gilead was granted a preliminary injunction, which Sandoz appealed. While the appeal was underway, Gilead’s patent was declared invalid in a separate case against a third party. Sandoz therefore brought a separate motion before the Maritime and Commercial High Court (MCHC) to lift the preliminary injunction.

Sandoz won the motion. In litigating the motion, Sandoz incurred actual documented costs of DKK 754,265 (approx. EUR 100,000), the majority of which were legal fees, while the rest were costs incurred by expert statements, including from European Patent Attorneys. The MCHC granted Sandoz a costs award of DKK 60,300. In other words, Sandoz, as the winner of the lawsuit, was able to recover less than 8% (!) of its actual costs.

Sandoz appealed the judgment on costs recovery to the Danish Eastern High Court. The appeal included an assessment of the total recovery of costs incurred in the connected suits between Sandoz and Gilead, including the appeal before the High Court.

The High Court held that the losing party, Gilead, should reimburse Sandoz for 49.5% of its legal costs and 100% of the costs spent on European Patent Attorneys.

In an earlier (unpublished) decision issued by the Eastern High Court on 31 August 2016 regarding legal costs in a patent dispute, the High Court held that the losing party, Morten Lundvig ApS, should reimburse the winning party, Simpson Strong-Tie A/S, in full for the costs spent on a European Patent Attorney. With regard to the remaining legal costs, however, the High Court granted Simpson Strong-Tie A/S a modest cost award of just below 11% of the actual legal costs.

In light of this earlier 2016 decision, the new 2019 decision issued by the Eastern High Court in the case of Sandoz vs. Gilead is likely to set a new precedent in Denmark for the recovery of legal costs and European Patent Attorneys’ fees in particular. Prior to these two decisions, costs incurred by a party’s use of European Patent Attorneys as expert advisers were considered recoverable only to the extent the costs had been“necessary for the adequate conduct of the case”.

In the recent 2019 decision, the High Court considered article 14 of Directive 2004/48 on the enforcement of intellectual property rights in light of the CJEU’s recent decision in Case C-57/15, United Video Properties Inc., and found that all European Patent Attorneys’ fees should be refunded 1:1. In doing so, it seems that theHigh Court is moving towards full recovery of patent attorneys’ fees 1:1, without performing a discretionary “necessary for the adequate conduct of the case” assessment.

The case is a step in the right direction for the recovery of European Patent Attorneys’ fees in Denmark. What’s more, the award of actual legal costs incurred was set at 49.5% of the documented legal costs. This is a high level of costs recovery compared to most cases – and potentially the beginning of a general trend towards higher costs awards. However – and more likely – it may also just underline the point that the level of costs awards granted by Danish courts is too low, and that this may have lead companies to turn their backs on the Danish court system. Indeed, the Danish recovery rate has long seemed to be much lower than in comparable jurisdictions such as Norway and Sweden. In these neighboring Nordic countries, the winning party is generally awarded full costs, unless it is apparent that a full award is not merited (e.g. where the winning party’s legal costs are exceedingly and unnecessarily high compared to the costs spent by the losing party).

Danish policymakers have started to look into the trend away from civil lawsuits in Denmark. We will have to wait and see if any political action is taken. This GuestKat is hopeful that an increase of the costs recovery level awaits ahead. For now, at least, it is a welcome sight that European Patent Attorneys’ fees are ostensibly fully recoverable.

The IPKat is delighted to welcome this first guest contribution from Hanne Kirk of Gorrissen Federspiel, Aarhus (Denmark):

In June 2019, the Danish Maritime and Commercial High Court gave a landmark decision – at least from a Danish point of view – concerning the question of originality in the sense of copyright law. The dispute concerned a hanging flowerpot, a vase and a jar, all created by the Danish designer Anne Black and all made of clay and sold in various colours and sizes. As shown by the photos, the products were all characterized by a lean and simple design.



Anne Black’s products, including the three at the center of the dispute, are marketed and sold online (www.anneblack.com) and in high-end interior decoration shops all over Europe. The disputed products were designed by Anne Black in the period 2013-2014.

In 2016, Netto, a Danish discount supermarket operating in Denmark, Germany, Poland, Sweden, and previously in the United Kingdom, launched a hanging flowerpot, a vase and a jar of its own. These were marketed by Netto through its Instagram profile, as well as in Netto brochures. As shown below, the products were all rather similar to those designed by Anne Black, albeit with some differences like the look of the surface and the number of strings in the hanging flowerpot, as well as some minor differences with regard to the dimensions.



For years prior to the ruling, the dispute was heavily covered by the Danish press, partly incited by Anne Black herself and her very proactive approach to the claimed infringement, which she openly discussed in posts and videos published through her personal social media profiles. This meant that, even before the court hearing had been scheduled, a significant part of the Danish population had already formed very strong emotional opinions in favour of Anne Black, her products in general and in particular the three products concerned. The ‘David and Goliath’ syndrome was a reality.

Personally, this GuestKat is happy with the outcome of the case, and notes that it is a clear statement by the court that despite the lean and simple design, these functional objects were all considered “works of art” according to the Danish Copyright Act. On this basis, the similarity between Anne Black’s designs and Netto’s products led the court to conclude that Netto’s products constituted an infringement of Anne Black’s copyright.

In the grounds, we find words like “conscious choice” and “design choices” (made by Anne Black), and it is clear that these choices related only to very few individual design elements, all of which belong to the public domain, such as ‘the cylindrical shape’, ‘subdued colours’ and ‘grooves in the glaze’. Just like short literary works consisting of only a few (public domain) words are able to get through the needle eye of the originality threshold (11 words, cf. Infopaq), works consisting of only a few simple design elements may make it through as well.

Earlier Danish case law given between the 1960s and the 1990s sets out a rather high threshold of originality for products and phenomena in the field of implied art, industrial design, fashionwear and the like. This regime has been followed by what seems to be a rather narrow view on the scope of protection (cf. e.g. UfR 2014/954 H and U 2014/3539 H).

Such rulings are contrary to both the EU copyright directives and the case law of the CJEU. From the directives we know that originality is defined as “the author's own intellectual creation” and that “no other criteria shall be applied to determine the eligibility for protection.” As for the scope of protection, we know from Painer that copyright protection must “be given a broad interpretation”, and that “nothing in Directive 2001/29 or in any other directive applicable in this field supports the view that the extent of such protection should depend on possible differences in the degree of creative freedom in the production of various categories of works.”

There seems to be a growing convergence towards a standard based on “creative choices”, and according to case law from the CJEU, it seems that originality is a generally harmonized EU-wide term covering all kinds of works, including functional and mass-produced industrial products. In the words of PermaKat Eleonora Rosati, “whilst legislative initiatives have been limited, the CJEU has been acting proactively, establishing through its decisional practice the de facto harmonization of an important principle of copyright: the originality requirement.”

Quite in line with EU copyright law, the Danish academia has long been resistant towards the position of the Danish courts. In a comprehensive publication titled A Service Check of the Danish Copyright Act under EU Law. How Far is the Actual Reach of ‘Danish copyright’?, no fewer than five leading professors and one postdoctoral researcher from the University of Copenhagen conclude on this topic that the Danish Supreme Court was probably “at odds with EU law” in its 2014 decision (UfR 2012/129 H) with which the Supreme Court established significant requirements in respect of originality and artistic endeavour for fashion articles. Specifically, the case concerned a t-shirt by the famous Danish designer Jørgen Nørgaard. The position of these professors is rather clear: Danish case law is not compliant with the EU regulation on originality. The above-mentioned Supreme Court t-shirt decision has served as precedent in a number of cases. With the Anne Black ruling, this may now change.

Finally: the decision has been appealed. This GuestKat has her fingers crossed for Anne Black.