The title of a work is determined in accordance with §§ 5 para. 1 and 3, 15 MarkenG. Work titles are names or special designations of printed works, cinematographic works, audio works, stage works or other comparable works. Comparable works can include computer programs, websites, events (sometimes also festivals), figures and podcasts.
For a work title to be protectable, it must be distinctive or have a distinctive character: In other words, it must be capable of distinguishing one work from another.
The requirements for the distinctiveness of the work title are often lower than for trademark protection. Particularly in the case of magazines, a very low degree of distinctiveness is sufficient for the Federal Court of Justice (BGH GRUR 2002, 176 – Auto Magazin). However, a work title that is a generic term is not protected. There is no need to keep generic terms such as novel, commentary, magazine, festival free. Under the aspect of the series title, generic terms with an additional word can also obtain protection in individual cases (Neurologische Nachrichten, see OLG Köln NJW-WettR 1999, 87).
Owners of distinctive work titles can demand that the use of an identical or similar work title for an identical or similar type of work be discontinued if there is a risk of confusion: For example, the category heading Hamburg scene a risk of confusion with the Scene page of the Scene Inside logo developed by B Hamburg (BGH, judgment of April 29, 1999 – I ZR 152-96). The same applies to the work titles Meine Masche on the one hand and Die neue Masche on the other used by knitting and crochet magazines (OLG Hamburg, judgment of December 1, 1988 – 3 U 188/88).
Unlike trademarks, work titles cannot be registered with the Trademark and Patent Office. The protection of a work title arises at the time of the commencement of use, for example the publication of a work. In individual cases, this may be too late and there may be a need to have the work title protected as early as the creation phase. The public title announcement in the form of a title protection notice ensures an earlier priority date for the title protection holder.
A major point of contention is often who is the owner of the work title. In some cases, it is assumed that the author of the work is the owner of title protection. Others take the view that the person who actually uses the work title in trade is the owner of the work title (e.g. publisher, film production company, magazine publisher, editor, etc.). The position of jurisdiction differs according to the type of media:
- In the case of books, the BGH assigns the title right to the author (BGH GRUR 2005, 265).
- In the case of magazines and newspapers, the publisher (BGH GRUR 1997, 662).
- In the case of serial titles, it depends on the individual case (BGH GRUR 1990, 220 – Verschenktexte).
- In the case of television programs and films of the production company (KG GRUR 2000, 907).
- In the case of musical works also a band member (KG GRUR-RR 2004, 137- Omen).
- In the case of events, the organizer (LG Berlin GRUR-RR 2011, 138).
- No supreme court rulings have yet been issued on the classification of title ownership for newer media such as podcasts. If the text of the podcast was written independently by the sole authors and then also recorded, the question arises as to whether, in line with the case law on books and bands, it can also be assumed that the authors own the title. This could be supported by the fact that the organizational and economic effort for a podcast is not comparable to that of a television programme and that the authors are still directly involved in the entire production.
In contrast to copyright law, the protection of a work title does not lapse 70 years after the death of the title holder, but already when the title is definitively (i.e. not just temporarily) abandoned; for example, after the end of a festival series or when a book is no longer distributed as new.
