How does title protection work?
By RA Christian Zierhut
What does title protection mean and which titles are eligible for protection?
The title protection takes place in Germany over the mark law. There, in §§ 5 and 15, the title of the work, as the legal term, is comprehensively protected. Under labor titles, which enjoy protection as business terms, the law understands the names or special designations of
Pamphlets (books, newspapers, magazines etc.)
All types of print media are meant to be independent of the press-law term, such as books, book series, book series, newspapers, magazines and catalogs. Also eligible for protection are subtitles, supplements or rubric titles.
All kinds of cinematographic works, in particular television (live) broadcasts and television broadcasts.
These include not only scores, regardless of whether in addition to the notes and text is included, all works on phonograms. In addition, the protection extends to broadcasts and broadcasts as well as parts of radio programs.
Plays, operas, operettas and musicals. Also a title protection for fairs is possible.
Other comparable works
For the title protection here is the work character. The “spiritual content” should dominate. This is particularly evident in games, software programs, websites. If it is “only” a manual toy, title protection is not possible.
When does title protection arise and what does a title protection ad bring?
Title protection basically arises through use. A special registration is not required. Usage is when the title is used for an existing work in business. In printed publications, therefore, the appearance, in films by demonstrating or in musical works by making audible.
In addition, the title protection requires an original distinctiveness. The title must be distinctive in the sense that it is capable of distinguishing one work from another. In contrast to trademark protection, the case law requires much less stringent requirements than trademark protection.
Can title protection be created even before usage?
If you want to give a title protection before use, ie, before publication, there is the possibility of a title protection display in the usually used for title protection media, eg in the title protection indicator ( www.titelschutzanzeiger.de ), “Titelschutz24”, in “textintern “, In the Börsenblatt and reasonably priced in the rundy Title Protection Journal ( www.titelschutzjournal.de ).
The reason for this is that the production of a book, film, television series often takes a long time. However, the case law does not consider the manufacturing process to be sufficient to justify title protection, although even at this point in time there may be a need for protection.
With a title protection indicator, the protection can be shifted from before, so in the production phase to be preferred. The prerequisite for this is that the work is then published within a reasonable period of time. Because the title protection display itself does not represent any use, it only secures the seniority.
How long does a title protection message “hold”?
The planned work should, as mentioned above, come on the market within a “reasonable time”. Otherwise, the earlier work title protection expires. The period that is appropriate depends on the type of work. For example, about six months until the publication of a title in the print sector are considered sufficient.
However, this period of six months for pamphlets serves only as a first clue. The period of time until the actual publication of the work in a particular case is appropriate depends on the usual production times for such a work.
If the title is not published or put into use within the time limit that has been published since the publication of a title protection notice, the title protection notice does not give priority to a novelty title that may be confused with the result that the competitive title used has the better priority.
Therefore, a second notification after the expiration of six months does not provide protection against competitor titles put into use within the first six months or announced after the first title protection announcement (if, of course, these advertised titles are also used within a reasonable time).
How far does the spatial protection range extend?
Throughout Germany, as long as a work title does not just have a local or regional target group (eg a local or regional newspaper).
How does the title protection end?
The protection ends with the abandonment of use. When this is to be assumed depends on the circumstances of the case. Content changes of the work itself do not lead to the loss of title protection, as long as the changes are not so significant that a new work is created. Also, time intervals between individual editions are not generally harmful.
What is the difference between title protection and trademark protection?
The work title, like the brand, is a product identifier. Unlike the brand, however, the title does not distinguish the work by its origin but by content and quality.
This has practical consequences, in particular with regard to the resulting limited protection: the title of the work is only protected against direct risks of confusion in the narrower sense. The brand, however, is protected against any likelihood of confusion, ie the protection circle is much wider than the title.
Titles can also be protected as trademarks according to the requirements of trademark protection. This makes sense for the exploitation of the title in other product categories.
Title learn protection against likelihood of confusion and well-known titles in addition also extended protection against unfair exploitation and impairment of their appreciation and distinctive character. The negligent or intentional violation of existing titles may lead to claims for damages.
From practice the principle case law OLG Munich, Az .: 6 U 3180/01: The title protection announcement takes precedence
When the plaintiff published a title protection advertisement for a magazine “ENDURO-ADVENTURE” on 5 April 2000, the defendant had already begun to prepare the distribution of a magazine with an identical title. Thus, the defendant had already sent on March 29, 2000 a disposition circular “the traders and wholesalers”. The defendant did not show a title protection notice. On April 18, 2000, the printing company handed over the journal of the defendants to the commissioned forwarding company. The applicant’s journal first appeared on 12 September 2000.
Won the plaintiff publishing house, which gave up the title protection announcement. As a title protection founding recognized the OLG Munich not the sales activities of the defendant, but the title protection of the plaintiff. Title protection is only justified, so the OLG Munich, a “public announcement with the possibility of a broad awareness of the interested competitors.” Competitors are not the addressees of the dispositions circular, but the publishers.
A title protection advertisement proves to be very valuable, because it offers a shifted protection and guarantees that the publisher can successfully defend himself against interim competition titles if he uses his announced work within a reasonable period of time.
Your Christian Zierhut
Board of ZIERHUT IP.