The concept of art; the concept of Hart

The IPKat's friend Birgit Clark has struck gold again, unearthing this really interesting decision of the Bundespatentgericht (German Federal Patent Court, 11 September 2007, published on 24 September 2007 as Decision No.33 W (pat) 65/06)), dealing with the potentially descriptive English word "artconcept".

Right: the IPKat found this delightful image on the artconcept website

"On an appeal by the applicant the court had to decide whether the word mark “artconcept” was registrable for “advertising agency services” in Class 35 and “entertainment services; sport and cultural activities” in Class 41.

The Deutsches Patent- und Markenamt rejected the application on the ground that the word was non-distinctive and directly descriptive of the relevant services. It also held that there was a Freihaltebeduerfnis (need to keep free), since competitors of the applicant should be able to use the mark “artconcept” if they so wished.

After the applicant withdrew its appeal with regard to the Class 41 term “cultural activities”, the Bundespatentgericht allowed its appeal regarding advertising services on the ground that the mark was distinctive. The court addressed several possible interpretations of the word mark, looking inter alia at German translations and internet interpretations of the mark, assessing whether there was a consistent use of the word in the German language and how the average German consumer would interpret this particular English language word combination.

In relation to the services covered, the court stated that “artconcept” did not convey a clear descriptive message to the average consumer, even if literally interpreted as Kunst Konzept (the German for "art concept"). The average and reasonable well informed consumer would read the mark as “art” and “concept” - not as “concept of advertising for art” or “advertising plan for art”. Only a word combination like Kunstvermarktungskonzept (“art advertising concept”) would be seen as descriptive of advertising services for art. The court pointed out that it is usually not the art concept but artistic creation itself that is the subject of advertising.

According to the court, the mark was not descriptive of “entertainment services” since, even though art could be entertaining, entertainment does not necessarily have to be art. Finally, “art concept” is not descriptive of “sport activities”; even though there are artistic sports such as Kunstturnen (gymnastics), the average German would not see a logical connection between the mark and the services. Overall and on balance it was the court’s view that the mark was “still distinctive” and not descriptive of the services covered.

The court also decided that there was no need to keep the word free “Freihaltebeduerfnis” for other possible applicants in the same field".

Adds Birgit: This decision shows how the German courts deals with foreign descriptive word marks and their interpretation. Despite being very detailed in its assessment and interpretation, the court still displays a surprisingly commonsense approach. The IPKat is sometimes a little concerned that skilled jurists can over-intellectualise their analysis and feels that, while the court's conclusion is correct, the route by which it was reached was somewhat laboured. Merpel adds, it's admirable that the relevant German consumer would see the foreign-language word "artconcept" and immediately vest it with potentially significant meaning. An English consumer, seeing the words Kunst Konzept, would be more likely to guess they were the name of a fictional villain in a computer game as a potentially descriptive term meaning "art concept".


Some facts and figures from the UK Authors' Licensing and Collecting Society (ALCS), the body that works to provide income for authors from the photocopying, recording and broadcasting of their works. According to a press release today, £3 million was distributed to members this September. Highlights:

* Highest payment to a single writer: £47,000

* Lowest individual payment to a writer: £10.00

* Average payment: £313.58

* Highest-earning literary estates: 1. Agatha Christie, 2. Leslie Charteris, 3. George Orwell, 4. Ian Fleming

* Highest grossing book: H. L. A. Hart's Essays in Jurisprudence and Philosophy

IPKat team blogger Jeremy is pleased to see H. L. A Hart raking in the goodies so long after his death - having read the book when it was still current and thinking it jolly good, he wondered whether anyone still read it. Merpel's not so sure: all we know, she says, is that people still photocopy it.