28 February 2022
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Time and again, clients from the media, entertainment and, in particular, gaming sector approach us because they are contacted by German trade mark owners about a trade mark application or the use of a trade mark. However, what at first glance appears to be a classic trade mark conflict can also be a collision of title rights in parallel. Since unregistered title rights are a separate category of rights, some of which are completely unknown in other countries, we would like to answer the ten most important questions about title rights here.

1) What are titles and how do they differ from trade marks?

While trade marks serve as an indication of origin and therefore refer to a producer of goods or the provider of a service, a title is basically only a name or the special designation of printed matter, cinematographic works, sound works, stage works or other intellectual performances. The title thus only serves to identify a work, but not its author, publisher or producer.

2) Is there a register for title rights in Germany?

No, title rights, like copyrights, are unregistered rights. However, there are certain journals including online databases in which titles can be searched but the databases only contain a limited number of titles.

3) Can I acquire a title right for all goods and services for which I can also apply for a trade mark?

No. Unlike trade marks, which can be registered for a wide range of goods and services, titles refer only to works. Works are intellectual achievements that can usually bear a name. The most important types of works are cinema films and TV programmes of all kinds, books, magazines and ebooks, plays and music albums as well as individual song titles. Also, for example, the title of a website, a software including apps as well as a newsletter can be protected by title law.

4) Which signs can be protected as title?

Title protection applies first to the main title of a work. Under certain circumstances, however, subtitles and secondary titles may also be eligible for protection. Short titles, such as the acronym of a long newspaper title, can also enjoy protection if the title holder uses this short title himself.

5) Do German title rights apply EU-wide?

No, German title rights are only valid throughout Germany, in some cases even only regionally in Germany. However, German title rights can be a barrier as an earlier right to an EU trade mark, an International Registration designating the EU and/or a Community design.

6) When do title rights arise?

Title rights generally come into existence when the work is used in Germany. In the case of films, this is the premiere of the film in Germany, and in the case of books and music, the publication in Germany. However, it is possible to secure a priority date before use by publishing a title protection notice, provided that use takes place within a reasonable period of time.

7) Do title rights expire if not used?

Yes, the title rights expire if use is definitively discontinued. However, a mere interruption of use can be harmless. Even if a film has not been repeated for a long time, this does not necessarily lead to forfeiture of the title rights. When forfeiture occurs ultimately depends very much on the type of work.

8) I have found another person's trade mark that is similar to my title. Can I infringe this trade mark by using my title?

In principle, the use of a title can only infringe earlier title rights. However, especially in the case of periodically published works, their titles are also used like a trade mark at the same time. It is therefore possible under certain circumstances to commit a trade mark infringement at the same time by using a title, e.g. for a film series.

9) What are the consequences if I infringe someone else's title right?

The consequences of a title right infringement largely run parallel to the consequences of a trademark infringement and basically include:

  1. Cease and desist from using the title, which may also require deletion of the title
  2. Payment of damages
  3. Information on the distribution channels of the works and accounts details
  4. Recall and destruction of the works

10) I want to publish a work in Germany. What can I do to secure the use of the title?

If you intend to publish a work such as a film or a music album in Germany, we recommend that you first conduct a title search. This can provide a first overview of similar or identical titles for at least similar works. As trade mark searches for goods and services in classes 9, 16, 41 and/or 42 are often requested in parallel, trade mark searches and title searches can be combined in a cost-efficient way, because in many cases the found trade mark proprietors will also be the title holders.

If the title search is positive, a title protection notice should generally be placed. In this way, you limit the possibility of third parties attempting to acquire title rights with older priority in Germany in order to subsequently make a claim against you for title infringement. A title protection notice is associated with low costs. It can also alert third parties of the intended use of a title so that conflicts can be detected before the title is put to use. This reduces the consequences of a possible title right infringement.

If there is a concrete risk that third parties will seek an injunction because of the use of your title, we can also file a protective letter with the German courts as a precautionary measure. Of course, we can also represent you out of court and in legal proceedings to legally defend the use of your title.

Stephan is a German attorney-at-law (Rechtsanwalt) and a member of our trademark team. He is also author of several publications on trademark law. He advises clients in all matters of EU and German trademark law and represents them in particular before the Court of the European Union, the European Union Intellectual Property Office and the German Patent and Trademark Office. Stephan studied law at the European University Viadrina, Frankfurt/Oder, Germany. He completed his legal clerkship at the Higher Regional Court of Düsseldorf and worked four years for a renowned Munich hard and soft IP boutique before joining Mewburn Ellis in 2021.

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