|Also a trade mark|
|But still in copyright?|
In its 2013 decision, the IPO examiner found that use of the sign ‘The Diary of Anne Frank’ could not be considered use in a trade mark sense, ie to distinguish the goods of one publisher from those of another, but rather use which indicates to a potential reader the subject matter of the book. As such, the IPO examiner concluded that at the time of the application to register this phrase as a trade mark the average consumer had not been educated into seeing the sign as indicating the trade origin of the good and services.
In its decision the Board of Appeal addressed some of the points previously considered by the OHIM examiner, but failed to explain conclusively in what sense ‘Le Journal d’Anne Frank’ could be considered as functioning as a badge of origin.