Title protection

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Title protection is the copyright protection of names or designations of works ( printed matter , films , audio works , stage works or other comparable works). Like the brand, the work title is a product identifier; however, he does not distinguish the work according to its origin, but according to its content and nature.

General

Not only the works themselves, but also their work titles - such as a picture title , book title , music title or film title - can enjoy copyright protection for themselves. A title concisely describes the content of a work and separates it from other works in order to avoid confusion or misuse. It represents the work content reduced to a minimum. It may therefore be necessary to protect this work title as well. Title protection can be guaranteed in four ways, namely through trademark law , competition law , general civil law ( § 12 BGB), but also through copyright law . A prerequisite for protection by copyright law is that the title of a work is a partial service that can generally be protected by copyright. The established case law considers the possibility of copyright protection of titles to be generally permissible, but restricts the fact that the necessary individuality and originality is normally not given in a title, since it usually consists of only a few words and is a short symbol for the work itself. Copyright is therefore unsuitable for protecting a title, so that title protection under trademark law is more effective, particularly in commercial transactions. In the event of unpleasant competition, competition law can serve as a means of defense.

Legal basis

Germany

Since titles are only short works of language, copyright protection is out of the question. Like the brand, the work title is a product identifier. As a protected title in terms of trademark law, it does not describe the content and quality of a work. Because a title must have a minimum of distinctive character in order to enjoy exclusive protection. If it were a purely descriptive shortened table of contents, protection would usually be denied. Since titles only consist of catchphrases that cannot develop any peculiarity in terms of their brevity, the prevailing case law and the prevailing literary opinion do not generally assume copyright protection for titles. Because of their concise brevity, they usually do not reach the level of design necessary for personal intellectual creation ( § 2 UrhG).

Title protection has its legal basis in Germany since January 1, 1995 in § 5 and § 15 of the Trademark Act (MarkenG). A distinctive title is already protected with the publication of the work ( sound carrier , book , magazine , film, etc.) - without the need for registration or other formality. The requirements for the distinctive character of work titles are lower than those for the distinctive character of trademarks, because it is not a question of differentiating the operational origin, as is the case there, but rather whether the term is viewed by the target public as a designation for an individual work. This protection can be brought forward before the publication of the title by placing a title protection advertisement in order to obtain legal certainty regarding the name of the work during the planning phase of the work (a public announcement or press release is not sufficient). In order to be effective, the title protection notice must be in a medium commonly used for this purpose and thus in a manner customary in the industry. Nowadays this can of course also be done via media on the Internet. The sole publication of a title protection advertisement (rather then "announcement in its own right") on the company's own website, however, will not be sufficient, since it cannot be assumed here that the industry will notice. It is important that the work comes onto the market, i.e. is published, within a reasonable period of time after the title protection advertisement has been placed, usually after five to six months. Otherwise the title protection expires and the title becomes free again. The title protection ends with the abandonment of the use. In the case of books, the book trade association assumes that the title protection expires if the book has been out of print for more than 5 years. In the case of works that appear periodically, it is assumed that the title protection expires 2 years after the end of the last edition. However, there is no rigid rule here.

According to the legal definition of § 5 Paragraph 3 MarkenG, work titles are names or special designations of printed matter, film works, sound works, stage works or other comparable works. Protection begins with the publication of the work. The title must be capable of identifying a related work and distinguishing it from others, and must show a minimum of individuality. Here, too - as with the titled work - the protection against confusion (Section 15 (2) MarkenG) and awareness protection (Section 15 (3) MarkenG) applies. A title only enjoys protection under Section 5 (1) of the Trademark Act if it is distinctive and does not represent a purely generic name (such as a car, newspaper, reader). A term is characteristic if the relevant public is able to distinguish the work marked with the title from other works. In accordance with Section 15 (1) of the Trademark Act, the rights holder is granted an exclusive right by acquiring the protection of a work title; this means that the owner of the title by law has the exclusive and sole right to use and exploit the title. According to Section 15 (2) of the Trademark Act, a third party is prohibited from using the title in business dealings in a manner that is likely to cause confusion with the protected title.

Title protection advertisements for films, books, newspapers, magazines, radio, TV, sound carriers, games, software, etc. can be published in the media commonly used for title protection advertisements. For book titles this is the Börsenblatt of the Börsenverein des Deutschen Buchhandels ; there are also advertising journals such as B. the title protection gazette , the title protection journal , the title protection magazine or the title protection report from the German Internet Association .

Switzerland

If a title is sufficiently individual, it enjoys copyright protection in Switzerland as an independent work in accordance with Art. 2 Para. 4 of the Swiss Copyright Act (URG). Titles must have an original character, an expression of a creative activity, differ from what already exists. This is the individual character that jurisprudence presupposes. In one of the few relevant decisions of the Swiss Federal Supreme Court on this subject, it is made clear that a title "on its own" is rarely allowed to claim copyright protection and specifies that a title must deserve "the elevation to the rank of a literary work of art". In 1951 the federal court had to deal with the Mickey Mouse . It also required an individual character: “To call a mouse Mickey (English form for Michael), how one attaches human first names to animals, especially in pet form, and how in animal stories human first names are also connected with animal generic names is all too obvious and usually [...]. If the foreign language of the name Mickey Mouse should appear somehow original, this impression immediately gives way to the literal translation into German, which would have to be 'Michael Mäuserich'. Hardly any intellectual effort is required to choose a common first name as a work title. And the individualization of an animal figure by means of an (already existing) first name is as little creative here as anywhere else. "

In Switzerland, work titles enjoy neither competition nor trademark protection. Art. 3 lit. D UWG forbids all measures as unfair which, along with others, are likely to cause confusion with goods, works or services of others. However, competition law requires that the title must have an operational function of origin. Work titles fail because they usually do not reveal any business origin (such as a book publisher or record label ).

Austria

In Austria, title protection is essentially anchored in two provisions, on the one hand in Section 80 of the Copyright Act (UrhG) and on the other hand in Section 9 of the Act against Unfair Competition (UWG). According to this, neither the title or other designation of a protected work of literature or art nor the external equipment of workpieces for another work may be used in a way that is likely to cause confusion. This requires that the title be distinctive. The name of the printed matter must have something special and individual about it. In Austria, too, an otherwise non-distinctive title can enjoy protection when it has achieved traffic recognition. The title protection arises when the title is used, provided that the title is distinguishable. A register entry or the publication of a title protection notice is not required for the protection of a title. With the publication of a title protection advertisement, the protection of the title can be secured before it is published. Title protection advertisements can be published in the media commonly used. For book titles this is the indicator of the main association of the Austrian book trade , there are also advertising papers such as B. the title protection journal , or the title protection magazine . Title protection can also be asserted across media. There could be a risk of confusion between the book title and the title of a film.

Web links

Individual evidence

  1. ↑ BGH GRUR 1990, 218, 219 - "The 7th Sense"
  2. ↑ OLG Cologne, judgment of November 16, 2008 , Az. 6 U 114/07, full text
  3. ↑ Leaflet for title protection issues ( Memento of June 13, 2010 in the Internet Archive )
  4. ↑ BGE 64 II 109
  5. ↑ BGE 77 II 383
  6. ↑ BGE 77 II 377 of December 4, 1951 (PDF; 505 kB), full text
  7. ↑ Leaflet on title protection ( Memento of the original from July 19, 2011 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF; 111 kB) from the Main Association of the Austrian Book Trade, accessed June 15, 2012 @1@ 2Template: Webachiv / IABot / www.buecher.at