When we think about intellectual property, many people immediately picture trade marks for goods or services and patents for inventions. But in Germany, there is an equally important yet often overlooked concept known as Titelschutz — the legal protection granted to the title of works of art, but also for apps, domains and other new types of communication. 

In a recent decision, the German Federal Court of Justice had to decide whether the title “Never again clueless” (“Nie wieder keine Ahnung”) for a book is confusingly similar to an identical title of a prior TV series. While the decision focussed on a book and TV show, it can be applied to types of titles – such as domains vs. applications – as well.

What is a Title Right and how is it protected?

In German law, the “title of a work“ (Werktitel) refers to the name or distinctive designation of a creative work, such as a book, film, magazine, app, song, playlist, domain, game, show, festival or similar. This protection falls under the German Trade Mark Act, which protects not only trade marks and company names but also titles. Each of these intellectual property rights is designed to make sure the public does not get confused: about who made a product, which company it comes from - or which creative work is being referred to. The main differences lie in what is being protected and how the protective rights arise and are enforced.

The primary purpose of protection of a title right is to prevent confusion between different works, so that the public does not mistakenly believe it is purchasing or consuming one specific work instead of another.

Therefore, German courts generally protect a title only when there is a risk of direct confusion with respect to the identity of a work, meaning the public might literally mistake one work for another. If someone uses an identical or highly similar title for an entirely different category of work (e.g., a book title vs. a film title), and the public can clearly see the difference, direct confusion typically will not arise.

But under certain circumstances, the courts recognize extended protection for a title to prevent confusion of the origin of a work. This can occur if a title has become so well known that the public associates it with a specific source or publisher. If another party then uses the identical title for a new work, the public might wrongly assume an economic link or cooperation between the two works (i.e., believing they come from the same publisher or media house). In these cases, the court asks whether the original title is sufficiently famous and whether the two works share a certain thematic context or “proximity”.

“Never again clueless”: No risk of confusion despite identical titles for different types of works

The German Federal Court of Justice shed light on these principles in a recent decision. In the case, a public broadcasting entity had produced a series called “Nie wieder keine Ahnung” (“Never again clueless”), covering topics like painting and architecture. The series had been broadcasted on television multiple times, with some educational web support and an accompanying book for one season.

A publishing house later released a totally separate book — also titled “Nie wieder keine Ahnung” — on different subject areas (politics, economics, culture), written by well-known children’s TV hosts. The original broadcaster argued that this second use of “Nie wieder keine Ahnung” infringed its title rights under Sections 5 and 15 of the German Trade Mark Act, claiming there was a likelihood of confusion of the titles.

The Court rejected the infringement claim. First, it found there was no direct confusion because the public could see that the publisher’s book was not part of the broadcaster’s existing television series or its related materials; these were simply two different works in two distinct categories (a TV show vs. a standalone book publication). Second, it concluded there was no extended confusion because the TV series title had not reached a level of fame or recognition sufficient to make the public believe there was a shared economic or organizational link. In other words, even though the titles were identical, consumers would neither assume their identity nor that the two works sprang from the same source.

Practical Takeaways for Rights Holders

What rights holders should bear in mind when operating on er entering the German market:

1. Early Announcement: Title rights are unregistered rights. At the same time, producing such works can take time, which may lead to situations where third parties publish a similar or identical title, disrupting the intended release. Therefore, right holders often publish a title protection notice (“Titelschutzanzeige”) even before publication of a title. This announcement secures the priority for a particular title but only if the titled work is then actually published later on. This step can help in proving one’s legal position should a dispute arise later.
2. Be Mindful of “Fame” Requirements: To benefit from extended protection (confusion as to origin), the title must be widely known and function — at least partially — as a badge of origin for the creator, publisher, or producer. Make sure any promotional strategy increases public recognition of your title to strengthen your case.
3. Distinctive but also thematically appropriate: A more distinctive title is easier to protect against direct confusion, while a well-known title can support extended protection. Therefore, a less distinctive title might better describe the content of a work but may also mean a narrower scope of protection. 
4. Assess Potential Overlaps: If you plan to use a title that is identical or very similar to an existing one, check for any published titles, announced titles and well-known titles that might be protected even for different types of work. If in doubt, consider whether a different or more original title might be safer.

Conclusion

Under German law, titles enjoy specific protection to prevent the public from unwittingly purchasing or engaging with the “wrong” work. While the emphasis is mainly on safeguarding against direct confusion, extended protection is possible if the title is well known and there is a real risk the public might presume an economic link. In its “Never clueless again” decision, the German Federal Court of Justice illustrated that identical titles alone do not necessarily constitute an infringement; factors such as the work’s nature, the scope of its popularity, and thematic proximity all play important roles in determining liability.

Staying aware of these nuances — especially if you regularly publish series, books, apps or shows — can help you position your titles in a way that maximizes legal protection while minimizing the risk of infringing others’ rights. Ultimately, clear and distinctive titles, coupled with effective marketing, will help ensure your creative works are well-protected in the competitive marketplace.

The full decision of the German Federal Court of Justic can be viewed here.