The case: Audiotec Fischer invented a simple plug-in connection (plug & play) for its car hi-fi products. A distribution company offered to distribute these new products and developed the logo ‘ match with double arrow ’ [fast-forward symbol] for this purpose. The companies subsequently worked closely together for many years in both marketing and sales for the new product line.
Audiotec Fischer added its company name to the logo and registered it as a trade mark for its new products:
The sales company was the exclusive distributor for the products covered by Audiotec’s brand:
After the termination of the contractual relationship, however, the distribution company demanded that the logo be abandoned. It had developed the logo, and claimed its use was protected by copyright. It argued that Audiotec had only received a licence to use the logo for the duration of the business relationship.
Was the distribution company correct?
It could only have granted a licence to the logo if the logo was protected by copyright. But was the logo in fact protected in this way?
The logo served to identify and advertise the audio products. It thus fulfilled a utilitarian purpose and fell into the category of applied art. In order to be eligible for copyright, creations in this category must not merely be a work of craftsmanship oriented towards a utilitarian purpose. They must also show personal, creative features specific to their developer.
The individual elements of the ‘match’ logo, however, do not show such personal, creative traits:
The name ‘match’ alludes to the special ‘plug’ connections of the units and is therefore derived from the intended use of the audio products. This does not constitute a special creative achievement.
The same applies to the ‘fast-forward’ symbol, which is frequently used in the audio sector. Its use merely makes use of a previously known, obvious form element.
The typeface used corresponds to the publicly available ‘911 PORSCHA’ font developed by Porsche, albeit the height of the letters are slightly changed to limit the width of the logo. This change was expedient and can be made by any graphic designer in the simplest way using Adobe Photoshop.
Finally, the orange colour Pantone 152 had already been used by Audiotec in other signs, hence its use is also categorised as obvious.
It is possible that the combination of individual elements that are not eligible for protection on their own might collectively give rise to copyright protection. However, the logo essentially combined only well-known formal elements. It did not represent a creative achievement that went beyond its intended use/was sufficient for art protection.
Since the distribution company did not own the copyright to the logo, it could not have granted Audiotec a temporary licence.
Irrespective of this, Audiotec would have received a perpetual, royalty-free, exclusive licence according to the circumstances of the contract. The logo was intended to serve the marketing of Audiotec products. Its use was not dependent on the existence of the collaboration.
The claims of the distribution company were rejected.
OLG Frankfurt, 12 June 2019, 11 U 51/18.
Learnings: If you pay someone to develop a logo for your company, remember that the developer may be entitled to the copyright on it. To avoid this situation, you should insist on a written agreement concerning the rights to use the logo. Registering the logo as a trade mark will not help you.