a) Copyright protection can also get the name of a regular comprehensive few paragraphs column, appearing at a particular Thematic territory in a newspaper or magazine.
b) In protectable titles for parts of a newspaper or magazine, it is crucial for the question of likelihood of confusion on the form and content of media embedding the contested designation, where among other things the typical way of presenting the contributions (e.g.. just text or images) is significantly.
BGH URTEILI ZR 102/10 from 22. March 2012 – Is not it?
Trademark Act § 5 Abs. 3, § 15 Abs. 2
a) Copyright protection can also get the name of a regular comprehensive few paragraphs ze column, appearing at a particular Thematic territory in a newspaper or magazine.
b) In protectable titles for parts of a newspaper or magazine, it is crucial for the question of likelihood of confusion on the form and content of media embedding the contested designation, where among other things the typical way of presenting the contributions (e.g.. just text or images) is significantly.
BGH, Judgment of 22. March 2012 – I ZR 102/11 – OLG Hamburg
LG Hamburg
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The I. Civil Division of the Federal Court of the oral negotiation 22. March 2012 by the presiding judge Prof. Dr. Bornkamm and the judge Prof. Dr. Büscher, Dr. Schaffert, Dr. Kirchhoff and Dr. Loeffler
hereby:
On the defendant's appeal is the judgment of the Higher Regional Court of Hamburg, 3. Civil Division, from 12. More 2010 repealed.
The thing is for a new hearing and decision, also about the cost of revision, back to the court-referred.
By rights
Facts:
The applicant publishes the weekly newspaper "Die Zeit". It seems for many years under the column labeled "Is not that right?"Weekly each provided with a varying content-related headline article, be answered in the questions of the reader, on the mystery of everyday life, difficult to be verified general knowledge, scientific phenomena, My then-popular science and other related issues. Example is below the contribution from the issue of 9. August 2007 reproduced:
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The contribution was there on page 30 placed at the bottom left, as follows:
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In the column, "Is not that right?"Material published in any event since October 2001 also be accessed on the "TIME" www.zeit.de published at the Internet address.
The defendant operates the Internet portal "web.de". She published there under the name "Is not that right?"Also posts, where questions are answered, the user. At the 29. March 2007 Could the following be-dazzled post be called:
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The applicant sees this as a violation of their rights protection title. She has requested the action by stages, order the defendant,
1. to refrain, in trade an Internet editorial section titled "Is not that right?Bear "or. these locations on the Internet and / or to make offer, as in, for example, http://magazine.web.de / en / topics / knowledge / stimmts / index / htm on 29. March 2007 was the case;
2. the applicant to give information about, when the sites on which, with which content, which user numbers and each period for which the section called "Is not that right?"Or by the defendant. were used by third parties in response to the defendant's legal;
3. pay to the applicant a license fee, its height after the information referred to in point 2 is determined.
The district court ordered the defendant in the terms sought by partial judgment on Un-terlassung and information. The appeal directed against the Defendants has been unsuccessful (OLG Hamburg, GRUR-RR 2011, 70). With the Senate-approved revision, their rejection, the applicant bears bean, seeks the defendant continues to dismiss the complaint.
Reasons:
I. This Court has adopted, the applicant stand against the defendant for an injunction pursuant to § 5 Abs. 3, § 15 Abs. 2 Trademark for use of the name "Is not that right?"To. For this it has executed:
The term "not that right?"Was the title of a section in accordance with § 5 Abs. 3 Trademark protected, and also sufficiently distinctive. Although the title was quite descriptive content. Due to the colloquial form of a question using the name of a question mark but come to a sufficient minimum level of originality. Between the designations of the parties to be made in the overall consideration of the likelihood of confusion. However, the title of the applicant does not get the
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Plant identification beyond Title function to, because he is not well known. The house of a weak distinctive character but was enhanced by the nature and extent of long-term use. The face-the title are identical and that they designate works similarly. It AEN nothing more, that the offers of the parties targeted to different groups of customers, and in ways of communicating information differed considerably.
II. The complaint against the same assessment audit is successful. The Co-lumnenbezeichnung "Is not that right?"Although the applicant as a permit under § 5 Abs. 1, 3 Trademark protection and also has sufficient negative distinctiveness. Based on the findings of the court, however, no likelihood of confusion between the applicant and the title used by the defendant identical name be adopted.
1. Without success, the revision maintains, the appellate court in violation of § 286 Abs. 1 Sentence 2, § 313 Abs. 3 Code of Civil Procedure made no specific findings as to, that it is in the series "Is not that right?"IN QUESTION a ti-telschutzfähiges work. It meets the requirements of § 313 Abs. 3 ZPO, when seen by reference to the reasons for the decision will, that the appeals court that given by the lower court on grounds tested and has made his own (BGH, Judgment of 7. June 1996 – I ZR 114/94, Wheat 1996, 786, 788 = WRP 1996, 1020 – Flower sales at service stations). That is the case here. The Court of Appeals ruling in the green to be made to the reasoning of the lower court by pointing reference, the District Court of the information submitted by the Un-terlassungs- and right of access to applicable justification awarded. From this reference is sufficiently clear, that the Court of Appeals from the District Court of reasons given for adoption, the column
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"Is not that right?"Was a title copyrightable work, has reviewed and makes it his own ge-. In the opinion of the District Court, the disputed column on the time required for plant quality independence, because it is perceived as an independent department and recurring part of the newspaper, and also dropped by a sharp dividing line of the other texts is located on the side.
2. The judgment of the court below, that for Kolumnenbe recording "Is not that right?Is "the applicant title protection, withstands revision legal review.
a) For the adoption of a protectable work title is sufficient, contrary to the Court of Appeal, however, not, that traffic is the designation of a section as intended and suitable sees, to distinguish them from other categories. This criterion is used to test, if a title for the protection as a work permit under § 5 Abs. 1 Trademark requisite distinctive character plays. To separate them is the upstream question, whether the designation, it is desired to protect Title, even a title protection-enabled business within the meaning of § 5 Abs. 3 Trademark applies.
b) Work are established under § 5 Abs. 1 Trademark protected as a business designation. Under § 5 Abs. 3 Trademark protectable work titles are the names or specific designations of pamphlets, Cinematographic, Sound works, Stage works or other comparable works. It is an independent against the copyright mark law works realized (vgl. Justification of the draft law of the Federal Government to the Mar-kenrechtsreformgesetz, BT-pressure. 12/6581, S. 67; Baronikians, Protecting the work title, 2008, Rn. 94 f.; German / Ellerbrock, Title Protection, 2. Divide. 2004, Rn. 26). Mark works in the legal sense, all intangible work results, as the object of the right- and commerce by
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the name for trade purposes are capable (vgl. BGH, Judgment of 21. Ja-nuar 1993 – I ZR 25/91, Wheat 1993, 767, 768 = WRP 1993, 701 – Fidgety Fish; Judgment of 24. April 1997 – I ZR 44/95, BGHZ 135, 278 – PowerPoint; German / Ellerbrock loc. 29).
c) With regard to the work category of documents was already in the jurisprudence of the Supreme Court to § 16 UWG recognized aF, that title as protection not only for the name of a newspaper or magazine, a whole, but is subject to certain conditions, to the designation of parts of a document considered (RGZ 133, 189, 191 – Rayon Courier). This law, the Bundesgerichtshof has continued (BGH, Judgment of 29. April 1999 – I ZR 152/96, Wheat 2000, 70, 72 = WRP 1999, 1279 – SCENE; Judgment of 18. June 2009 – I ZR 47/07, Wheat 2010, 156 Rn. 15 = WRP 2010, 266 – Eifel-newspaper).
After that is a part of a newspaper or magazine, a separate title protection-enabled business within the meaning of § 5 Abs. 3 Trademark, if it is a special more, acts according to their outward appearance and by their subject matter and content, to some extent self-designed department, the regularly recurring appears under its own name more distinctive (RGZ 133, 189, 191 – Rayon Courier; BGH, Wheat 2000, 70, 72 – SCENE). The required external independence is a clear option in case of regular documents from newspapers, content dealing with specific topics (RGZ 133, 189, 191 – Rayon Courier), and in multilateral regional sections or other sections of a newspaper (BGH, Wheat 2010, 156 Rn. 15 – Egg-fel-newspaper; OLG Hamburg, GRUR-RR 2009, 309, 310 f.) can before and at a single, be given topically particularly oriented newspaper page (RGZ 133, 189, 191 – Rayon Courier; left open in Federal Court, Wheat 2000, 70, 72 – SCENE).
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According to these principles, also the name of a column, appearing for many years to a particular topic in a newspaper or magazine, Title protection come. The column title is to include the business name appearing editorial contribu-tions. The required external independence of the column relative to the remaining content of the magazine derives from its typographic design, which sets them apart from other posts. Not critical, whether the column a greater or smaller part of a newspaper- or magazine page-takes. Copyright protection may exist for a column and then, if they regularly include a few paragraphs.
d) According to the findings of the court below is from a title-protectable column assumed. The column is set apart from the other articles of the page clearly by a hyphen, giving it a degree of external autonomy. It appears weekly in many years with a particular thematic focus. Anyway, in case of dispute, the column title is thus a copyrightable work. This is irrelevant, that the co-lumnenbezeichnung as "supertitles" always made much smaller than that of one gentliche published under her title of the concrete contribution.
3. Unsuccessfully turns to appeal against the judgment of the appellate court, the term "Is not that right?"Was sufficiently strong among divorce-.
a) The distinctiveness refers to the appropriateness of the title, a work such as to individualize and to distinguish them from one another (RGZ 112, 2, 5 – Brehm's Animal Life; BGH, Judgment of 6. June 2002 – I ZR 108/00, Wheat 2002, 1083, 1084 = WRP 2002, 1279 – 1, 2, 3 in the blinking). They lack, if the title for word choice, Design and traffic sent priate importance in a plant-specific content description exhausted (BGH, Judgment
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from 27. September 1990 – I ZR 87/89, Wheat 1991, 153, 154 = WRP 1991, 151 – Pizza and Pasta). To the distinctive character of a newspaper- tentitels or magazines are put on the case law of the senate few demands, as the traffic is used for a long time because, that magazines and newspapers with more or less colorless and only in content, or spatially concretized generic names are in (BGH, Wheat 2000, 70, 72 – SCENE). These principles, the Senate also considered when assessing the distinctiveness of a title for the regional portion of a newspaper applicable (BGH, Wheat 2010, 156 Rn. 14 – Eifel-newspaper). They are but – contrary to the opinion of the court – not to the same Ma variable for the description of individual items, Series protectable items on specific topics or regularly published columns. While there is here, as in every track a certain need, to describe the content of the work be-recorded. In these cases, but on a regular basis significantly greater scope than in newspaper- and Zeitschriftenti-stuffs. Consequently, that greater demands are placed on the distinctive.
b) The Court of Appeal was right to, the colloquial language version in question form the title "Is not that right?"A certain minimum level of originality gives. The title is not descriptive smooth. He does have strong indication, that the articles published under the title questions are answered. The fact that these questions, the reader is, but is seen just as a special thematic focus on general knowledge, Everyday puzzles and popular scientific questions.
Therefore, even if the title "Is not that right?"Already innately a to-reaching, although only a weak distinctive character plays, this does not mean, that such a title is already attained with use of recording title protection. Rather it is necessary, that the traffic in question heading as Ti-
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tel one title protectable work recognizes. In case of a column title will this require frequent, that the column has already been published several times, and with some regularity eng. Because otherwise, the traffic will view the designation only as the title of each article, a title for the protection not like to consider. In case of dispute, however, this requirement is not in doubt. Due to the Court of Appeal found regular use of the action character in the weekly newspaper "Die Zeit" since 1997 recognizes the reader, that it is at the sign for the title of the Colom-ne and not just the title of each article.
4. With success, but the revision applies to the acceptance of the loading rufungsgerichts, exists between the title of the applicant and of the challenged designation of the defendant within the meaning of § 15 Abs. 2 Trademark Likelihood of danger.
a) Work title as defined in § 5 Abs. 3 Trademark basically serve only to distinguish a work of other, without a reference to the manufacturer or owner of the work, and thus to contain a specific commercial origin. They are therefore generally protected only against the danger of direct confusion in the narrow sense (BGH, Judgment of 13. October 2004 – I ZR 181/02, Wheat 2005, 264, 265 f. = WRP 2005, 213 – The phone-bank book, mwN). Such a threat of immediate Likelihood of is present, if due to the use of the means of the Ti challenged danger, that the public holds the title for the other (BGH, Judgment of 1. March 2001 – I ZR 211/98, BGHZ 147, 56, 64 f. – Tagesschau). It is the likelihood of confusion based on an interaction between each of the eligible factors assessed, in particular the distinctiveness of the earlier title, the work area and the similarity of the title (vgl. BGHZ 146, 56, 63 – Tagesschau; BGH 2002, 1083, 1084 – 1, 2, 3 in the blinking). When journal titles are also the
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Market conditions and character, Appearance, Subject, Presenta-tion, To take account of appearance and form of distribution of the journal (vgl. BGH, Judgment of 21. June 2001 – I ZR 27/99, Wheat 2002, 176 = WRP 2002, 89 – Auto Magazine). For assessing the likelihood of confusion in self-protectable parts of a newspaper or magazine on the same principles.
b) The appeals court is expected, the title of the applicant possessed enhanced distinctiveness, because of his house only low distinctiveness through extensive use in the weekly newspaper "Die Zeit", and at least from the 29. October 2001 been on the Internet under the address is increased www.zeit.de. The respective columns as such are very similar as information services, because questions would be answered in them in daily knowledge of various areas. Not very similar, however, is the media environment, in which the columns are arranged. While the applicant a quality newspaper for an upscale audience providers te, is the way the information on the internet site of the defendant to describe rather than to tabloid entertainment-oriented. Despite these differences in media embedding are the opposite of art, but to be classified as similar. Given an increased identification force of the title of the applicant, the similarity of the categories of work and the identity of the opposing character is to affirm the likelihood of confusion in the context of an overall assessment.
c) These considerations of the court to keep the legal review was not in all respects.
aa) The title "Is not that right?"Is in terms of its clearly describe the nuances of home-made weak distinctive (s. top marginal. 20). The Court of Appeal found extensive use of reinforced
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Although the distinctiveness. But that does not justify the assumption, use to have a sign in the case of action increased – within the meaning of above-average – Distinctiveness out. A working title, of the house has only a weak distinctive character, will usually mean by intensive use of distinctiveness conditions Erlangen. For increased distinctiveness would be increased traffic notoriety required, could reach the house of poorly under-strong divorce action characters in doubt only because of a particularly intense loading use. One such intensive use is not, however, found. In particular, no argument for or apparent, that the title is known outside the circle of their readers as the name of the column in the weekly newspaper of the applicant, in any event, only comprises a part of the addressed traffic. Based on the findings of the Appeals Richts in terms of size and the different placement of the characters appearing in the action column can not even be assumed, that every reader of the "TIME" the lawsuit is known as the title character of the co-lumne. It is also not yet set forth, that the applicant's has highlighted the question column in advertising particularly.
bb) Based on an average distinctiveness rei-chen title identity and similarity is not the designated with the title content for the adoption of a likelihood of confusion. Because the style of presentation and the media embedding the contested designation may appeal more to the risk of confusion between the two in question titles. It is not excluded, that also the part of the traffic, of the Colom-nentitel "Is not that right?"The applicant is familiar with and under the same title, the heading on the internet portal of the defendant meets, proceed because of the dif-ferent media embedding overlooking the substantial content related to the title of a random match and will not accept, the
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here as there appears under this title contributions are part of the same series. It should be, that – whereupon the appeal in law back has – the user of an Internet portal in human experience generally know, whose range of information they just take in claim (vgl. for tuning the TV audience BGHZ 147, 56, 66 – Tagesschau; further OLG Hamburg, NJW-RR 1997, 357, 358, the extent confirmed by Supreme Court, Wheat 2000, 70, 72 – SCENE). The risk, that the users of the portal of the defendant with regard to the title "Is not that right," assume, they were on the Internet site of the applicant, appears in these circumstances rather than being distant.
The can – unlike the audit response, citing the country court judgment says – not be leveled against, the protection of section titles run empty, if likelihood of confusion may be that reason neint ver-, because the two bearing the same title Rubri-ken appeared in publications with a different main title (vgl. this Viefhues / Emsinghoff, AfP 2008, 358, 359 ff.). For example, two sections carry the same title in two similar magazines, it is conceivable, that the little attentive reader with a view of the section keeps a journal of the other (vgl. OLG, GRUR-RR 2008, 402, 404). Moreover, in particular the distinctive tracks is also a part of the reader, recognize the, that these are two different organs, it be-ing, that it is a section, appearing here and there.
cc) Under these circumstances, the judgment of the given-described reasoning can not stand.
III. The appellate court also arises for other reasons is not as accurate. Antitrust claims of the applicant – approximately in terms of exploitation of reputation (§ 4 No.. 9 For sure. b UWG) or specific disability (§ 4 No.. 10 UWG) – in view?. The Appeals-
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report has found, that regularly used the column heading "Is not that right" shall have no force of indicating origin labeling. This reveals no error of law and will of the audit response not called into question.
IV. The appeal judgment is set aside after. The thing is, for a new trial and decision of the Court of Appeals remanded. The Senate may, on the basis of the findings of the court is not a final judgment itself, whether there is a likelihood of confusion. The ques-tion of the likelihood of confusion is indeed a question of law, the principle can also answer this Court (BGH, Judgment of 14. More 2009 – I ZR 231/06, Wheat 2009, 1055 Rn. 62 = WRP 2009 1533 – airdsl). A prerequisite for this, however, is the assessment of the overall impression of the mark, which lies substantially on tatrichterlichem area (vgl. BGH, Judgment of 13. January 2000 – I ZR 123/97, Wheat 2000, 506, 508 = WRP 2000, 535 – AT-TACHÉ/TISSERAND; Judgment of 27. November 2003 – I ZR 79/01, Wheat 2004, 514, 516 = WRP 2004, 758 – Telekom). A faultless overall on
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the basis of an average distinctiveness of Klagezei-label, Title identity and similarity of the designated with the title content un-taking into account the media embedding is not yet done by the Appeals court.
Bornkamm Buescher Schaffert
Kirchhoff Löffler
Lower courts:
LG Hamburg, Decision of 16.02.2008 – 315 The 549/07 –
OLG Hamburg, Decision of 12.05.2010 – 3 You 58/08 –