Satirical protection for the most beautiful hiking trails of the wandering prostitute

May the author of a book which, amongst other things, critically engages with the commercial exploitation of bestsellers and in this context takes up the example of the well-known bestsellers of the "wandering prostitutes series", make use of the well-known title component "wandering prostitute" in an ironic manner in his book title?

In the case to be decided by the Higher Regional Court (OLG) Düsseldorf, the author had published his book under the title "Die schönsten Wanderwege der Wanderhure". The publisher of the "wandering prostitutes series" saw in this a violation of its earlier title rights. The titles of the series were well-known business designations and as such were protected even if the use did not create a risk of confusion. The Regional Court (LG) Düsseldorf upheld this view and prohibited the use of the title.

Court decision

The Higher Regional Court (OLG) Düsseldorf (Judgment of 05.08.2014, I-20 U 63/14) dismissed the action. Although the designation "Wanderhure" was indeed a well-known designation within the country, so that in principle protection under the MarkenG was given even if no risk of confusion was established, the use was nevertheless not unlawful because it was covered by freedom of artistic expression.Trade Mark Act was also given even if no risk of confusion was established. However, the use was not unlawful, as it was covered by freedom of artistic expression.

The title "Die schönsten Wanderwege der Wanderhure" was itself already satirical, and thus art, because it deliberately created an ironic connection between the pleasure of "beautiful hiking trails" and the medieval "wandering prostitute", and this also stood in relation to the content of the book, which critically engaged with the commercial exploitation of bestsellers. In weighing this against the constitutional guarantee of property rights in the title right, freedom of artistic expression therefore prevailed. The use of the title was therefore lawful.

Conclusion

Satire is possible even in the smallest space. If the title of a work, such as a book, film or musical piece, is original and engages satirically with a pre-existing protected title, the use may therefore be permissible despite the earlier rights, in particular if this also refers to a critical factual discussion in the content.