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Regardless of the type of business or industry, marketing is an essential part of a business’ potential and – ability – to generate growth.
In addition to the commercial challenges of devising a strategic and targeted marketing strategy, the choice of marketing strategy also raises a number of complex legal issues that a business should be aware of.
The marketing activities of Danish and international businesses are increasingly subject to new rules and control by both authorities and organisations. It is therefore becoming increasingly difficult and complicated for businesses to comply with and understand the principles and rules governing their marketing initiatives. And this will not diminish as more and more economic activity moves online where the boundary between sales and marketing is virtually non-existent.
Our dedicated team deals with all aspects of marketing and consumer law and consists of highly qualified attorneys with extensive experience in the field. Our team includes former Consumer Ombudsman and Advocate General at the Court of Justice of the European Union, Henrik Saugmandsgaard Øe, which gives us a unique insight into both the authorities’ handling of marketing law issues and the underlying EU law regulation. Our in-depth knowledge, combined with our insight into the current challenges affecting businesses’ choice of marketing strategy, ensures that our advice on marketing and consumer law is of the highest quality.
We assist both Danish and foreign companies with specialised advice and preparation of litigation in a wide range of areas, including:
Gorrissen Federspiel has established a group specialising in marketing law, rooted in our knowledge of and experience in all aspects of marketing law.
Our dedicated team deals with all aspects of marketing and consumer law and consists of highly qualified attorneys with extensive experience in the field.
Our team includes former Consumer Ombudsman and Advocate General at the Court of Justice of the European Union Henrik Saugmandsgaard Øe, which gives us unique insight into both the authorities’ handling of marketing law issues and the underlying EU law regulation.
Our specialised knowledge combined with our insight into the current challenges affecting businesses’ choice of marketing strategy forms the basis of our advice on marketing and consumer law.
Marketing law is based on the Danish Marketing Practices Act, which in turn is based on EU competition law.
The Marketing Practices Act was last updated in 2017 to ensure that the Act complied with various EU directives in the area, in particular the EU’s Unfair Commercial Practices Directive, which includes rules on aggressive marketing, misleading marketing and deliberate omissions.
The 2017 update introduced new provisions and concepts, including ’good commercial practice’, which was introduced as a supplement to the general provision on good marketing practice.
In addition, the Marketing Practices Act is often used as a supplement to other acts, particularly the Danish Copyright Act, the Danish Trade Marks Act, the Danish Designs Act and the General Data Protection Regulation (GDPR).
The Marketing Practices Act and its provisions are thus relevant in the context of trademark infringements that may involve misuse of other companies’ products or trademarks.
Some of the key provisions and principles of the Marketing Practices Act are:
The Marketing Practices Act also covers a number of products and services which may not be marketed either generally or to specific target groups or which may only be marketed in special circumstances.
It is thus prohibited to market products to children under the age of 18 if the products are unsuitable for children. This includes products such as:
In addition, there are products where special circumstances apply and where advertising and marketing are restricted. This includes:
In Denmark, the Danish Consumer Ombudsman is responsible for supervising compliance by Danish businesses with the Marketing Practices Act. The Consumer Ombudsman is an independent authority, which may either take up cases on its own initiative or as a result of specific complaints.
Breach of the provisions on good marketing practice or good commercial practice may result in an order issued by the Consumer Ombudsman.
An order may be seen as a legal yellow card for the business’ marketing behaviour. If, subsequently, the business fails to comply with the order, a fine or a short prison sentence may be imposed.
Breach of specific provisions of the Marketing Practices Act may result in prosecution, fines and, in rare cases, prison sentences.
The Danish Parliament has decided that as of 1 January 2022 fines for breaching the Marketing Practices Act will be based on the revenue of the individual business.