Dr No in trade mark country: a Dutch point of view

Abstract

The key question is whether titles of books, films, music albums, and the like and names of characters featured in such works can be trade mark protected. Often the view is taken that this is not possible, on the ground that they are descriptive (eg ‘Harry Potter’ would be descriptive for Harry Potter) or on the ground that they refer to the artistic origin rather than to the commercial origin (eg ‘Dr No’). In this article, this view is challenged. It is not the question whether ‘Harry Potter’ is descriptive for Harry Potter, but whether it is descriptive for a certain nature of entertainment. And is not true that the artistic origin is decisive for the characteristics of the entertainment originating therefrom and for that reason is perfectly fit for serving as a trade mark? The author also challenges the view that a title can only be a trade mark if it refers to a series of works published under that name. We do not require ‘Coca Cola’ to have several tastes to be a valid trade mark, either. The article further discusses the correlation between trade mark protection and copyright protection and argues that they can co-exist peacefully. The practical significance of whether titles and characters can be trade mark protected can be found in the further exploitation thereof after copyright protection has expired. But also before that expiration, trade mark protection of titles and characters is relevant for the entertainment industry in cases where it can be doubted that a title or a name on its own is copyright protected. Trade mark protection of such indications is the cork upon which the merchandising industry is floating.