Intellectual Property (IP) is ‘mind product’, the result of your ideas and creative processes. Any creative wishing to capitalise on their inventions and ideas should take advantage of IP protection by applying for either a copyright or a patent.
IP can be divided into two areas: artistic/literary work and industrial product, both of which offer legal protection against others copying and financially gaining from your original creation. The issue of IP – or Geistiges Eigentum in German- is particularly pertinent in the light of Munich’s second attempt to trademark the term ‘Oktoberfest’.
Oktoberfest is a 16-day folk festival held in Munich. More than 6 million visitors from around the world attend the event every year, enjoying the amusement rides, the live music, and let’s not forget the beer. Initially held in Munich, Oktoberfest is an important part of Bavarian culture but due to its increasing popularity the festival has captured other cities’ attention. Cities around the world have been inspired by Munich and are holding their own Oktoberfest festivals modelled on the original event. Understandably Munich wants to stop these other festivals by claiming that such emulation is an infringement of its IP; the thought being that Oktoberfest originated in Munich, and Munich should be the sole owner and provider of Oktoberfest and related products.
The city previously tried to trademark the term at the German Patent and Trademark Office, but its application was refused due to ‘Oktoberfest’ not being recognised as artistic/literary work or industrial work. This time, Munich has applied for a trademark at the European Intellectual Property Office (EUIPO) directed to multiple goods and services including soap, perfume, sunglasses, photographs, and clothing. Munich has also tried to counter the generialisation claim by compiling a survey that will back its assertion that the term is widely recognised as Munich’s IP.
Although the criteria for IP is subject to much litigation, there are general outlines for what constitutes intellectual property. Artistic/literary work includes books, musical compositions, paintings and sculpture, films, computer programs. Protection of this work can be achieved by obtaining copyrights which are protected for 50 years, even after the death of the holder. The second category of IP is industrial work, which covers inventions, trade secrets, and industrial designs. For this work, protection can be achieved for 20 years by obtaining a patent which acts as a safeguard ensuring that products can be protected, transferred and invested.
So what type of trademark can Munich apply for and is the application likely to be successful? ‘Oktoberfest’ and related products would come under the artistic/literary category, but Munich could suffer the same result as its initial application for a trademark; it could be argued that the term ‘Oktoberfest’ lacks any distinctive character and has become customary in the current language, which would be absolute grounds for refusal by the EUIPO. It would therefore be essential that the survey proves that the term has gained distinctiveness and has recognisable cultural ties to Munich according to the perspective of the relevant public. ‘Oktoberfest’ is such a global phenomenon that it is unlikely to be recognised as culturally or intellectually tied to Munich, but it will be interesting to follow the case and discover the repercussions of a successful application.
IP law is an ever-evolving sector of Law, but is essential to support and develop your business. If you place such a high value on your original creation, as we at Linkilaw do, please do not hesitate to connect with us. At Linkilaw, we understand the importance of registering for a trademark and offer this service cost-effectively: prices range between £550-750 and will safeguard your IP and protect your original ideas.