Germany jurisdiction report: Book, song and film title protection

Work titles are regulated in section 5 of the German Trademark Act, which defines them as “a subset of commercial designations”. The work title right grants the owner an exclusive right.

Pursuant to section 15 (2) of the German Trademark Act, third parties are prohibited from using without authorisation the commercial designation or a similar sign in the course of business in a manner which is likely to cause confusion with the protected designation.

In addition, further claims exist in particular for information on the scope of the infringement and damages. The work title right arises when a distinctive title is used for a work in the course of trade in Germany.

A title is distinctive if it is able to individualise a work as such and to distinguish it from another. The distinctive character is lacking if the title contains nothing more than a work-related description of content according to the choice of words, design and meaning attributed to it by the public.

Case study

In its decision Das Omen (docket number I ZR 97/17), the German Federal Supreme Court had to address the question of who is the owner of the right for a song title, how far this protection extends and whether the work title right can be transferred.