I'm off then

"I am off then" was and is one of the most successful books of recent years. Hape Kerkeling reports on his experiences on the Way of St. James. The title is a commonly used saying that is used in many ways – including by a travel portal on the Internet. On whether this is compatible with the author's and publisher's title rights, the Higher Regional Court (OLG) Cologne had to decide in the context of summary proceedings.

The defendant company operates travel portals, among other things, at"weg.de" and "ferien.de". From the end of 2013, a large-scale campaign with the slogan "Ich bin dann mal weg.de" was used to advertise the portal weg.de. This displeased the publisher of the book "Ich bin dann mal weg", which is why he proceeded against what he considered to be an infringing use of the title from the perspective of trade title protection. The Regional Court (LG) Cologne issued the injunction; the objection proceedings brought against it were unsuccessful. The portal operator then appealed against the decision of the Regional Court (LG) Cologne and challenged thetrade title protection granted by the court of first instance. In his view, the publisher was not the holder of the title right, the title was not capable of protection due to general use, and finally, there was no urgency for conducting summary proceedings.

The Court's Decision

The Higher Regional Court (OLG) Cologne confirmed the trade title protection assumed by the court of first instance by judgment of 05.12.2014 (Az. 6 U 100/14) and upheld the preliminary injunction. Regarding urgency, the court took the view that it is not decisive that the advertising campaign was already noticed earlier by the author or staff members of the publisher. What is decisive is solely the point in time at which management became aware of it. According to the affidavits submitted, this occurred within the urgency period, which is why the necessity of summary proceedings was beyond question.

The publisher was also entitled to assert the claims. The transfer of usage rights by the author, due to the close connection between work and title, generally also includes the latter, so that the publisher is the holder of the title rights. Finally, the admittedly common title "Ich bin dann mal weg" is also capable of protection despite its descriptive connotations for a travel report. In the court's view, this is indeed original for a report on the pilgrimage on the Way of St. James, which is widely perceived as spiritual in nature. The weak distinguishing character is overcome by the outstanding renown of the work or title. The publisher can therefore claim corresponding trade title protection.

As a result, an infringement of the title right was also affirmed. Since confusion is not required in accordance with protection of well-known marks, this follows alone from the fact that the relevant circles establish an associative connection, which is the case in view of the advertising of travel services. Therefore, the portal operator would benefit from the drawing power of the title and infringe the rights existing in it.

Conclusion

The judgment may be formally correct. However, in my view, a more detailed investigation of the understanding of the advertising would have been required. I myself know both the title and the advertising, but would not have thought before the judgment that the latter had anything to do with the work by Hape Kerkeling. The trade title protection granted is therefore not fully comprehensible to me.