The Hungarian Supreme Court has upheld a claim to protect the format
of a light entertainment radio show called "Cappuccino". The copy of the judgment
that was released was anonymised, so we are unable to give details of the
Cappuccino was an entertainment programme "primarily aimed at
entertaining and cheering up the audience in the morning". In addition
to news and promotion services, the programme included such regular features
as a "traffic jam watch", a "morning star wake-up",
funny fake reports, "effects", signals and mini dramas with
imaginary persons and characters.
The defendants were two radio stations which at various times
broadcast the radio programme, the hosting and editing of which was carried
out by the claimant. The title of the radio programme was devised by the
claimants along with its general format.
In 1997 the claimants entered into an agreement with the first
defendant to continue to prepare and host the radio programme broadcast by
that radio station. Two years later the first defendant terminated the
agreement, but continued to broadcast the programme with the same title.
The second defendant had filed an application for trade mark protection for
the word Cappuccino and in December 1997 it transferred the trade mark to
the first defendant without notifying the claimants.
Based on these facts, the claimants asserted that they were editors
of the radio programme, and that this was an intellectual activity which
resulted in the creation of an individual and original work enjoying
copyright protection under Hungarian copyright law. The claimants also
asserted that the first defendant used the title of their work without
their permission following the termination of their legal relationship.
Accordingly, the first defendant's conduct infringed Article 13(1) of the
Hungarian Copyright Act, and the second defendant infringed it by using the
designation Cappuccino for the acquisition of trade mark protection without
the claimants' consent.
Relying on expert opinion from a copyright expert board, the court
at first instance concluded that the selection, arrangement and editing of
the programme items played in the radio programme did not qualify for
copyright protection, and the copyright infringement claim therefore
failed. The claimants successfully appealed against the initial decision to
the Hungarian Supreme Court, which came to this conclusion:
"The radio programme created through editing, if it is
distinguishably individual and original as compared to other radio
programmes, shall be considered as a work enjoying copyright protection,
which protection shall extend to the unique title of the work. Therefore,
the broadcasting radio station may only use the title of the work as the
title of a radio programme with the consent of the editing authors. The use
of the unique title of the work in a trade mark, without the consent of the
author, infringes the rights of the author."
In this country this action would almost certainly have been brought
as a passing off rather than copyright action, there being no copyright
protection for titles such as "Cappuccino".
It does, however, constitute a further indication of the way that the
courts across the world are going in protecting unique formats for
programmes, particularly where there is obvious bad faith on the part of
the alleged infringer.