Protecting apps: Name of a smartphone app can be protected as a work title
On 05 September 2014, the Higher Regional Court of Cologne (OLG Köln) had to decide on the question of whether the name of an app can be subject to work title protection as laid down in Sec. 5 (1), (3) of the German Trademark Act. The answer of the Court was: “in principle yes“.
The facts of the case were as follows: On its website “www.wetter.de“ and on its app “wetter.de“ the plaintiff provides weather forcasts and related information. The defendant’s apps “wetter DE“, “wetter-de“ and “wetter-DE“ provide the same services. In its complaint, the plaintiff demanded that defendant cease and desist from using these terms.
The Court affirmed work title protection for apps by drawing a parallel to titles of software and websites, for which the possibilty of title protection has long been recognized by the courts. The Court considered the comparabilty with software to be given based on the fact that an app is an application programme for smartphones. Further, the Court considered that the title of an app may be treated in the same manner as the title of a website, if the app offers the same content as the corresponding website and therefore can be seen as a mobile transfer system of such an online-portal.
However, in the present case the OLG Köln refused to recognize work title protection for “wetter.de“. The court held that the title used by the claimant lacked inherent distinctiveness as well as distinctive character acquired through use. Moreover the Court clarified that even though courts require only a lower level of distinctiveness for work title protection of titles of newspapers and magazines, this could only apply to titles of apps in case a corresponding printed publication exists.
In the meantime the claimant appealed the OLG Köln judgement. It is now up to the BGH (German Federal Court of Justice) to rule at final instance on that dispute