Title protection for newspaper section "Stimmt's"?

In the opinion of the Higher Regional Court (OLG) Hamburg, the designation "Stimmt's?" for a section of a weekly newspaper, under which knowledge-related reader questions are answered, is entitled to trademark-related title protection against the designation "Stimmt's?" for the knowledge section of a rather entertainment-oriented internet portal. In particular, the issues in dispute in this matter were the capacity of a section name to possess title protection and the question of whether the word "Stimmt's?" were subject to a duty to keep it free for use.

The publisher, among others, of the weekly newspaper "D.Z." claims against the operator of a commercial internet lifestyle portal on the basis of trademark title protection law for a prohibitory injunction.

Under the section "Stimmt's?" both in the weekly newspaper "D.Z." and on the internet page of the "D.Z." and in several radio stations affiliated with the publisher, reader questions are regularly answered which concern matters of general knowledge, science or other areas. The operator of the internet portal has also answered reader questions on the internet under the heading "Stimmt's?".

After a failed warning notice with a penalty-bearing declaration of undertaking against the portal operator, the publisher obtained a preliminary injunction from the Regional Court (LG) Hamburg, in which the portal operator was prohibited from offering an editorial internet section with the title "Stimmt's?" in commercial transactions.

Decision of the Court

In itsjudgment of 15.05.2010 – Az. 3 U 58/08the Higher Regional Court (OLG) Hamburg upheld the claim of the publisher claimant and confirmed the decision already issued in preliminary legal protection. In the opinion of the Higher Regional Court (OLG), the section "Stimmt's?" constitutes a work capable of title protection, which could be confused with the section of the defendant.

The similarity of both sections was unproblematic here. It was also beyond dispute that the publisher had used the title "Stimmt's?" for a longer period and to a much greater extent.

What had to be clarified, however, was the question of whether a section of a newspaper, like the name of the newspaper itself, can have title protection and whether in the present case there is a duty to keep the word "Stimmt's?" free for use, with the result that the portal could be prohibited from using it.

The Higher Regional Court (OLG) Hamburg answered this in the affirmative. Not only the title of an entire newspaper or magazine can be the subject of a work title right, but also the titles of regular supplements or sections may be considered insofar as they possess, by virtue of their presentation, a certain independence in relation to the main publication or recognizability to the reader. Use in terms of work title is always present when the designation in question is used in such a manner that the relevant public regards the designation as that of a printed publication for the purpose of distinguishing it from other works.

The claimant's title also possesses sufficient distinctiveness and is thus capable of protection. Distinctiveness within the framework of work title protection denotes the suitability of a title to distinguish one work from another, and thus the function of the title as a means of individualization. The court takes the view that the title "Stimmt's?" also has a descriptive content, because it implies a content-related reference to the fact that subsequently a verification of certain information is to be carried out. However, the formulation in colloquial question form including the contained question mark possesses a sufficient minimum degree of originality.

The Higher Regional Court (OLG) Hamburg rejected a duty to keep free for use. This could be taken into account by limiting the scope of protection.

Conclusion

In addition to the titles of the media themselves, regular columns or supplements contained within them also enjoy trademark title protection, provided that they possess a certain independence from the main publication through their external design. Restraint is advisable with regard to the use of already existing titles, including columns within a newspaper, magazine, or corresponding online presence.