Friday July 3rd 2009, by Piers Strickland
In a recent case before the European Court of First Instance (CFI), the CFI rejected an opposition from Danjaq LLC to an application from a third party to register the words Dr No as a Community Trade Mark (CTM), in respect of items such as bags, beer, clothing etc.
Crucially, the CFI held that: “the signs Dr. No and Dr. NO do not indicate the commercial origin of the [James Bond] films, but rather their artistic origin”. In doing so, the CFI was making an important distinction about the function of registered trade marks, which exist to designate trade origin for goods and services emanating from the trade mark proprietor in question.
By way of contrast to trade mark rights, copyright protects in an entirely different way; copyright protects the creativity invested in certain works, such things as artistic and literary works. The CFI went on to hold that: “the same sign [i.e. Dr No] may be protected as an original creative work by copyright”.
My view is that the words “Dr No” would not be likely to be protectable under the English copyright law, as they would be considered de minimus, i.e. there is too little there to justify copyright protection. A claim under the English law of passing off to restrain the unauthorised use of the get-up DR NO would also be difficult, if the English Courts took the same view as the CFI that the words DR NO did not identify or trade off the goodwill of the owners / makers of James Bond, but rather just indicated use of the trade mark on unrelated products.
