Claim and text protected?
January 6, 2010 | 20,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
I have had a name including a claim for my business/online shop since 2007. Name: XXXX and the claim: XXXX. On the homepage, there is the following text written by a copywriter: Unique, funny and original - that is the standard for our products. Whether made by designers, mothers, or other creatives themselves. In our store, you will find something special. The perfect idea for every occasion! Just because you like it or as an extraordinary gift for others. Creative and individual - XXX!
Now another store in XXXX has had the following name and claim since January 1, 2010: XXX - XXXXX. And they use the following text: Extraordinary, original, and creative - that is the standard for our products. Whether made by designers, mothers, or other creatives themselves or bought from selected manufacturers, in our store you will find something special for you and your child! You will find the perfect item for every occasion, for yourself, for your children, or as a unique gift for others. Unique and special - XXXX!
Is that allowed?
Dear inquirer,
Thank you for your inquiry!
I would like to address your question considering the situation you have described as follows:
Whether a copyright infringement exists is a matter of individual case assessment. In order to enjoy copyright protection, a certain level of creativity must be present in the text for it to be considered a copyrighted work.
According to case law, creativity is present when there is an individual thought process, high level of individuality and uniqueness in a text, as well as imagination and creative ability.
I have attached a very informative link on this topic for your reference:
http://www.internetrecht-rostock.de/foto-text-urheberrecht.htm
Under the Copyright Act, a free use of a protected work to create an original, independent work is permissible if the original contribution significantly exceeds the one used. This means that by altering a work/text, a new copyrighted work can be created, which does not constitute a copyright infringement in relation to the modified text.
In your case, in my opinion, the original text (your text) is still recognizable, but the degree of alteration (more than just a few words exchanged) is quite advanced. It could be argued that there is substantial alteration, and therefore no longer a copyright infringement, even though I personally would lean towards considering it as a copyright infringement.
In the field of copyright law, where the specific circumstances matter, there are often diverging legal opinions on this matter. Therefore, I would advise caution in taking legal action against the competitor.
You should first contact them and confront them with your accusation, demanding the removal of the texts. Otherwise, you may seek legal assistance. Often, this alone can lead to the desired outcome.
I would like to emphasize the following:
The legal advice I have provided is based solely on the information you have provided. My response is only a preliminary legal assessment of the situation and cannot replace a comprehensive evaluation of the circumstances.
By adding or omitting relevant information, a completely different legal assessment may result.
I hope that my explanations have been helpful, even though I regret that I cannot provide a more positive message. You are welcome to contact me through the follow-up option on this platform or via my email address.
I wish you a pleasant Wednesday afternoon!
Best regards,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney at Law
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
Fax. 0471/57774
