The name of a film can often be quite memorable and distinctive. Other times, a film title may be descriptive, suggestive of the film’s contents, reference a known historical event or be adapted from the book’s name. If you have come up with a film title, you may wonder if you can protect it as a trade mark. This article will explore whether trademarks can protect a film title.
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Use as a Trade Mark
A trade mark is a sign businesses use to represent their brand in the marketplace and to distinguish their goods and services from those of their competitors. Registering a trade mark gives you an exclusive right to use your mark and prevent others from using it without permission.
Examples of common trademarks include:
- logos;
- business names;
- names of products or services; or
- a business’s slogan.
However, not all use of a sign will constitute use as a trade mark. Indeed, the courts have established that the use of a mark ‘as a trade mark’ is the use of a mark that acts as a badge of origin.
Film Titles and Trade Marks
Generally, the title of a standalone movie is not entitled to trade mark protection. This is the same for the title of:
- single books;
- songs; and
- other singular creative works (i.e. those with no sequels, prequels or do not come in a series).
This is because most of these titles need to indicate the commercial origins of the film, book, song, or details about the production of these works. Therefore, the titles of these types of works are usually used to identify the work itself. That is, a film title refers to the film itself and not the commercial origin of the film. In contrast, trademarks indicate the origin of the goods and services that are provided under the trade mark.
However, there are some situations where a film title can be protected by trade mark registration.
Continue reading this article below the formFilm Franchises and Series
Some film titles can be protected by way of trade mark registration. Particularly when the name of the film identifies a series of works or productions that originate from a particular production company. For example, movie franchise names such as Harry Potter and The Lord of the Rings have been protected by trade mark registrations for several different goods and services.
Can My Film Title Be Protected Through Copyright?
A single film title, on its own, must be sufficiently unique enough to qualify as an original work to attract protection under copyright law.
Copyright refers to the protection of the expression of original ideas and does not protect the ideas themselves. Instead, it is the material expression of the ideas that are entitled to protection. In Australia, copyright protection arises automatically.
Whilst trademarks or copyright may not protect your film title, it may protect other elements of your film. For example, some elements of your film that may receive protection include:
- the soundtrack of your film;
- the script; or
- visual images.
Under copyright law, a filmmaker can:
- prevent the unauthorised use of their film;
- authorise the use or distribution of the film;
- license the rights to the film through commercial agreements; and
- take action against anyone who infringes on their copyright.
Key Takeaways
Generally, one-off film titles are not considered functioning trademarks and, therefore, cannot be protected. However, in some cases, film titles of franchises and series such as Harry Potter can function as a trade mark and receive protection through trade mark registration. In addition, various creative elements of your film can also be protected through copyright.
If you have any questions about how to protect elements of your film, or if you have any other questions about trademarks, our experienced trade mark lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
Generally, one-off film titles cannot receive trade mark protection. However, in some cases, film titles of franchises and series such as Harry Potter can function as a trade mark and thus be protected through trade mark registration.
A trademark is a sign used by a business to represent its business and brand in the marketplace and distinguish its goods and services from its competitors. Examples of common trademarks include logos, business names, names of products or services, or a business’s slogan.
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