The Higher Regional Court of Cologne (OLG Köln) held in its decision (court ref. 6 U 205/13) dated September 5, 2014 that the title of a mobile app can enjoy protection against similar titles for similar services. However, the claimant who is the operator of a German weather information website that runs under the domain <wetter.de> and an app with identical content also titled <wetter.de> cannot prohibit the use of the title <wetter DE> or <wetter-de> for a similar weather app by the defendant.
The German Trademarks Act (MarkgenG) – besides regulating trademark protection, of course – grants exclusive rights to company names and work titles. Work titles are defined as “the names or special designation of printed media, films, acoustic works, stage performances or similar works” (§ 5 Abs. 3 MarkenG).
The operator of a website or an app can claim such exclusivity for its product’s name given that (a) the website or app qualifies as a “similar work” according to the above cited norm and that (b) the title has the required distinctive character.
It is settled case law that websites can be a work as defined and that the domain name under which the respective website is being offered can be said website’s title. The OLG Köln now clarifies that for an app the same standards apply.
According to these standards the mere registration of a domain name does not grant any protected rights to this name. A right can be acquired by use of the domain name provided that by the addressed public it is perceived as a title or name for the connected website and not just as a mere address to the content. Such understanding as a website’s title is missing if the domain name is merely descriptive and can therefore not serve to distinguish one website from another.
Consequently, if the app’s title <wetter.de> is lacking sufficient distinctive character it cannot serve as a protected work title within the meaning of German trademark law. “Wetter”, you must know, means weather. The court understandably denied the term <wetter.de>’s inherent distinctiveness and classified it as merely descriptive.
Further the court stated that the lowered requirements that are applied to the inherent distinctiveness of printed newspapers and magazines would not apply to domain names and apps. It can therefore remain undecided if the title <wetter.de> meets this necessary minimum of individuality required for printed matter. Furthermore the claimant could not prove that his online weather services were sufficiently well known to have acquired distinctiveness.
As the term <wetter.de> lacks the required distinctiveness the claimant cannot claim an exclusive work title right and cannot prohibit the use of a similar title by the defendant for a similar service.