The Diary of Anne Frank is well known. Frank wrote her diary in a hiding place in a house at Prinsengracht 263, Amsterdam, describing the Second World War from the point of view of a young girl. Sadly, she died in 1945 and was never able to tell the world her story in person. After her death, the book won worldwide fame and copies are still sold today, thanks to the organisation founded by Frank’s father, the Anne Frank Trust. The trust has now encountered problems in its applications for trademark protection for "Het Dagboek van Anne Frank” ("The Diary of Anne Frank") and “Het Achterhuis” ("The Hiding Place").
Protection through copyright
From a legal point of view, Frank's death in 1945 meant that copyright in the diary will expire in 2016, as copyrighted works are protected for only 70 years after the death of the creator. Therefore, from 1st January 2016 in theory anyone may reproduce and publish Anne’s diary. It is thus unsurprising that the Anne Frank Trust has applied for additional protection, in this case under trademark law.
Additional protection under trademark law
In principle, it is possible to apply for a trademark once copyright has ended. The law sets down no explicit obstacles to this additional protection. Nevertheless, the Benelux Office for Intellectual Property (BOIP) has refused to register the word marks "Het Dagboek van Anne Frank” and “Het Achterhuis” for goods and services in Classes 9, 16, 39 and 41. According to the BOIP, these phrases do not have sufficient distinctiveness to qualify as trademarks. They will not be understood by the public as a sign that the goods and services of a certain company can be distinguished from those of others, which is an important requirement for determining distinctiveness. The BOIP also held that "Het Dagboek van Anne Frank” and “Het Achterhuis” describe the content of the films, books and plays which will be published under these trademarks.
The trust appealed, but was unsuccessful. In a similar argument to that of the BOIP, the Court of Appeal felt that the marks lacked sufficient distinctiveness because they “described” the content.
Titles excluded from trademark law?
If the reasoning used by the BOIP and the Court of Appeal is interpreted literally, it could mean that all titles of films, plays, magazines, books and even musical compositions are excluded from protection under trademark law because the public will often recognise the content of these titles. But would, for example, an application for "Bridget Jones' Diary" also be refused on these grounds?
It may be that Frank presents a very specific case, in which the subject of protection has become part of Dutch cultural heritage and thus cannot be monopolised under trademark law. On these grounds, the public would immediately know that the book was about Frank and her hiding place.
This case provides yet more evidence of how strict and capricious the assessment of distinctiveness can be in the Netherlands and the other Benelux countries. However, this does not apply only to book and film titles. All kinds of grounds for refusal should be anticipated and dealt with at an early stage of trademark development.
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