Title protection for descriptive app designations?

The Higher Regional Court (OLG) Cologne had to address the question, at the instigation of the operator of wetter.de, under what conditions an app enjoys trademark law protection as a work title. The bone of contention was an app bearing the designation "wetter DE".

The app in dispute was offered by the operator of the internet offering "wetter.at" under the nearly identical designations "wetter DE", "wetter-de" and "wetter-DE". The operator of the internet offering "wetter.de", which has existed since 2009, considers itself thereby infringed in its rights to the designation "wetter" in combination with "de" for a weather information service.

The court's decision

In its judgment of 05.09.2014 (Az. 6 U 205/13), the Higher Regional Court (OLG) Cologne recognises in principle a work title protection for apps. In the court's view, parallels could be drawn to software, a homepage or a domain, in which work title protection has already been recognised in case law. However, the condition is that the title of the work must be distinctive, that is to say, it must be suitable for distinguishing one work from another. A plainly descriptive title does not meet these requirements, but rather constitutes merely a factual statement relating to the content of the work.

In the court's view, this is the case with the domain wetter.de and the associated weather information offering. The title "wetter" permits conclusions only as to the content of the offering, but not as to its identity. The top-level domain .de does not change this, because it merely serves the geographical assignment of the offering or its content. Even if an app does not require a geographical assignment, these principles are also to be applied here, since the addition "DE" would not be ascribed a distinctive function even in the case of an app.

According to the court's submissions, a certain habituation of the public to descriptive titles must be recognised in the case of domains. This is to apply at least when a same-named print edition exists, which is not the case with "wetter.de". For apps, no such habituation is discernible.

Conclusion

The judgment addresses an increasingly important topic. The app market has long since outgrown its infancy and has gained significantly in economic importance. This corresponds to the necessity of title protection for manufacturers in order to effectively ward off imitative products and free-riders. The court's view that protection for only marginally distinctive domains should depend on the existence of a same-named offline medium is not comprehensible. On the contrary: in the case of generic domains, the relevant public—unlike with print publications—is always clear about which offering is in question due to the uniqueness of domains.

This argument cannot be applied to apps, it is true. But what—other than market scarcity—in turn distinguishes apps from print works? Anyone who regularly browses the various app stores has long since become accustomed to the use of descriptive titles. Only the large number of apps could speak against the recognition of overly descriptive work titles and might therefore justify higher requirements.