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 parties.
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.