DENMARK: De-Branding of Parallel Imported Medicines Determined to Be Legal

The Danish Maritime and Commercial High Court has issued a first instance decision regarding the de-branding of parallel imported medicines, finding that the partial de-branding of the primary packaging by the parallel trader was not objectionable as it did not amount to presentation liable to damage the reputation of the trademark.

Merck Sharp & Dohme (MSD) filed for a preliminary injunction against Abacus Medicine A/S (Abacus), claiming that Abacus’s relabeling infringed MSD’s trademark rights because it covered the original label on the inner packaging with a new label which reproduced the product-specific trademark but not the other trademarks and/or other distinctive signs which appeared on the original label.

In its decision on April 2, 2025, the court found that Abacus’s “partial de-branding” was not liable to create the wrongful impression that the trademark belonged to Abacus or that it manufactured the product. In concluding this, the court emphasized the following specific circumstances:

1. The new label on the inner packaging stated the name of the manufacturer and holder of the marketing authorization (Merck Sharp & Dohme B.V.). The new inner label contained no information about Abacus or any distinctive signs related to Abacus.
2. The new label on the inner packaging had to be seen in context with the new label on the outer packaging which (1) stated that the product-specific trademark (PIFRELTRO) belonged to Merck Sharp Dohme LLC, (2) stated that the manufacturer and holder of the marketing authorization was Merck Sharp & Dohme B.V., (3) did not cover the trademarks on the original outer packaging, (4) stated Abacus as parallel importer of the product, (5) stated Abacus had repackaged the product, and (6) did not contain trademarks or distinctive signs belonging to Abacus.
3. The logo of the trademark owner was stamped into each tablet.

The court concluded that the presentation in this case was not liable to damage the reputation of the trademark because it did not compromise the function of the trademark as an indicator of origin.

The decision does not, however, seem to address the other issue one needs to consider when determining whether the presentation of a repackaged medicinal product infringes a trademark owner’s rights: Does the presentation affect the trademark’s value by detracting from the image of reliability and quality attaching to such a product, and the confidence it is capable of inspiring in the public concerned? (cf. paragraphs 122–125 of the judgment in C-224/20).

The decision has been appealed.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest. Law & Practice updates are published without comment from INTA except where it has taken an official position.

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