The purpose of this paper is to examine the legal position of titles of literary or artistic works in intellectual property law, namely regarding copyright law, trademark law and the special provision in § 73 in the Danish Copyright Act. To conduct this examination this paper applies the legal dogmatic method.
The purpose of the legal dogmatic method is to analyze and describe the relevant applicable sources of law. In danish law the relevant sources of law consists of written law, case law, legal customs, and legal principles. As this paper deals with rules based on EU-law, EU regulations, EU directives, and case law will be included in the papers’ analysis of applicable law. Legal preparatory works and legal literature are included for interpretative purposes.
Under copyright law it is a condition for protection that the object must be of a literary or artistic nature and be considered as a work. Titles are literary by nature. To be considered a work the object must be considered original. For short sentences like titles, originality is assessed regarding the choice, sequence, and combination of the words in the title as the words themselves are not eligible for protection. For titles of literary or artistic words, the title must also indicate the originality of the underlying work. It is considered difficult for titles to achieve protection. Only the original parts of titles protected under copyright law are protected. As the originality in titles is only based on the choice, sequence, and combination of the words it is this matter that is protected. As titles are short in nature, titles will only be protected against close copies.
For at title to be registered as a trademark a number of conditions must be fulfilled. The mark must be eligible for use as a trademark. Furthermore, the title must be distinctive and non-descriptive. For a mark to be distinctive it must be capable of distinguishing the goods or services of one commercial entity from other commercial entities. The mark is descriptive if it is perceived as providing information about the goods and services applied for. This is the case for 1) simple titles describing the subject of the artistic and literary work, 2) titles that are so well known that the relevant public associates the title with the underlying story and 3) titles that have become part of the language thus having acquired a second meaning which is descriptive for the goods and services applied for. When the trademark is registered, it grants the proprietor exclusive rights for the distinctive parts of the trademark. However, the protection is only against use as a trademark which fulfills the trademarks functions, especially as a communication of the commercial origin of goods and services. According to case law by the European General Court and EUIPO Boards of Appeal, as a general rule, a title will not indicate commercial origin when the title is merely used as a designation for literary or artistic works. However, it is found to be possible for titles to be used as a designation for literary and artistic works to distinguish commercial origin, but it is unclear when such a use indicates commercial origin.
According to § 73 in the Danish Copyright Act a later literary or artistic work may not be made available to the public under a title which entails a likelihood of confusion with an earlier work. This provision protects works per se, including its title. For the provision to be applied it is required for the earlier work to have distinctiveness. In this context the work or title must be capable of distinguishing the artistic origin of the work. If the work is distinctive, it is protected against titles of later works which confers a likelihood of confusion. The assessment is based on whether the artistic origin of the works is capable of being confused. It is an overall and individual assessment. It is a require- ment that the title is being used as a title for another work than the earlier and that there is an actual likelihood of confusion.
In the final chapter the results of the examinations are compared, and it is concluded that the rule in the Danish Copyright Act § 73 is best suited for protection of titles as a designation for literary and artistic works, as the other legal schemes contain issues regarding acquisition of protection as well as the scope of that protection being narrow or unclear.