Case Comment on Federal Court of Justice (BGH) Judgment of 7 May 2025 – I ZR 143/24
Background
At the heart of the BGH's decision lies a conflict between two works bearing the identical title. The claimant, a public broadcasting institution, had secured title protection in 2009 for the title "Nie wieder keine Ahnung". Under this title, two seasons of a television series focusing on topics such as painting and architecture were broadcast, accompanied by an associated website and a printed companion book.
The defendant, a publishing house, released a non-fiction book in 2021 with the same title ("Nie wieder keine Ahnung") on the subjects of politics, economics and culture – written by presenters of a public-service children's news programme. The book was also published as an e-book and audiobook.
The claimant alleged an infringement of its title protection under Section 5(3) in conjunction with Section 15 of the German Trade Mark Act (MarkenG) and sought injunctive relief and associated claims.
Following a decision in favour of the claimant by the Regional Court of Stuttgart and a dismissal of the claim by the Higher Regional Court, the BGH had the opportunity to issue fundamental guidance on the scope of title protection and the criteria for determining likelihood of confusion.
Key Legal Issues
The central issue was whether the claimant's television series and the defendant's identically titled publications gave rise to a likelihood of confusion under Section 15(2) or (3) MarkenG, which could justify injunctive relief.
In particular, the dispute centred on whether identical titles across different media formats can result in a likelihood of confusion in the strict or broader sense under Section 15 MarkenG.
It also had to be clarified how the required level of title recognition is to be assessed, and what role the extent of public penetration and origin-related recognition play in this context.
Finally, the court addressed whether protection based on recognition under Section 15(3) MarkenG can apply even in the absence of a likelihood of confusion—whether strict or broad.
Applicable Legal Provisions
Sections 5(1) and (3) MarkenG; Sections 15(2)–(4) MarkenG; Section 97 German Code of Civil Procedure (ZPO)
Headnotes of the Decision
The BGH confirmed that title protection generally covers only the risk of direct confusion in the strict sense. Such confusion requires that the public perceives the challenged title as the protected one, mistakenly assuming the identity of the two works. In the absence of the necessary closeness between the works – as in the present case – a direct likelihood of confusion is typically ruled out.
Nonetheless, the BGH acknowledged the possibility of broader protection in cases of indirect confusion. Such extended protection applies only where the public associates the title with a particular commercial origin. Mere identity of the title is insufficient. Two cumulative conditions must be met: The original title must enjoy a sufficient degree of recognition, and here must be a factual connection between the original work and the challenged product. These criteria are to be assessed independently and must both be fulfilled.
The BGH also clarified the standard for establishing the recognition of a title. It is not enough for a title to have been broadly encountered by the public. Instead, a qualitative assessment of the public's perception is required. Occasional media exposure – such as brief TV appearances or website visits – is not enough to establish origin-related expectations.
Finally, the BGH made clear that protection based on recognition under Section 15(3) MarkenG also requires actual recognition in the trademark-law sense. In the absence of such recognition, there can be no unfair exploitation or impairment of the distinctive character or reputation of the protected title.
Practical Implications
The judgment defines the doctrinal boundaries of title protection and has significant implications for media companies, rights holders, publishers and creative professionals alike. Key takeaways include:
- Title protection is limited to the immediate work context. Identical titles alone do not constitute infringement if the works are not sufficiently related.
- Using a pre-existing title for a different work does not automatically breach trademark law, provided there is no deception regarding origin or exploitation of recognition.
- Demonstrating title recognition is challenging – mere viewer statistics or click rates are not sufficient.
- Titles should be checked for potential conflicts, but identical titles in different media types (e.g., book vs. TV series) are not automatically inadmissible.
- Title protection should not be confused with trademark protection – its legal scope is narrower.
The ruling encourages rights holders to adopt a strategic approach to title protection – viewing it not merely as a label, but as a market-anchored indicator of origin.
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