Dan Brown, the author of the widely read book (over 30 million copies reputedly sold), the Da Vinci Code, was represented in the High Court in London in 2006 to defend an accusation that his book breached copyrights held by other writers, and used material from their work in the book. In 1982, Michael Baigent and Richard Leigh had their book called "The Holy Blood and The Holy Grail" published by Random House, which also published the Da Vinci Code. The accusation was that the Da Vinci Code took certain themes from The Holy Blood and The Holy Grail, and that this represented breach of copyright (Baigent & Leigh v The Random House Group Ltd., [2006] EWHC 719 (Ch), judge Peter Smith). The accusers lost their case.

This brings into question as to whether copyright is a sufficiently strong form of protection for intellectual property. Indeed, a key question is whether stronger protection for intellectual property is embodied in trade mark registration compared with copyright. Some of the issues that arose from the court case included: -

• does copyright protect ideas?
• does copyright protect facts?
• how can you prove breach of copyright?
• how can an author use historical events in a book, if someone else has written about them?
• does copyright protect themes?

The UK's High Court judgment in the Da Vinci code case outlined the important point is that copyright can be used to prevent copying of a substantial part of the relevant form of expression, but it does not

• prevent use of the information,
• thoughts or
• emotions expressed in the copyright work.
• It does not prevent another person from coincidentally creating a similar work by his own independent efforts.
• It is not an intellectual property monopoly in the same sense as a registrered trade mark, patent or registered design.
• There is no infringement of copyright in the absence of a direct or indirect causal link between the copyright work and the alleged copy.

(reference judge Mummery LJ, Sawkins (paragraph 29) case, Sawkins v Hyperion Records Ltd [2005] 1WLR 3281).

Based on the Da Vinci Code court judgement, copyright is not appropriate for protecting ideas, facts or themes. The rights of authors to write about historical events was preserved by the judgement.

The religious theme about the lineage of Christ was not protected as it was contained in the book, and was a valid theme for other authors to write about.

This makes copyright somewhat less valuable as a form of protection for intellectual property. Traditionally new ideas are protected through patents, although certain matters are not patentable - for example recipes, or ideas that already exist or ideas that form part of the state of the art.

So protection of your work may be more difficult to obtain than might appear at first.

So it may be very worthwhile looking at using trademark registration as a suitable additional tool for protection. Registered trade marks have been very successful in protecting matters that can be embodied into the following:

• concepts, such as cartoon characters.
• brand names, such as a name for a drink.
• titles, such as a book or film title.
• character film rights and merchandising.
• themes, such as a devised theme, like 007.
• themes or ideas such as restaurant chains.
• concepts, such as contained in beauty products.

Applying to register a trade mark can carry significant rights, once registration has been obtained.

The registered trade mark allows for several ways to exploit concepts, brand names, titles, film characters and themes. The result of the Da Vinci Code legal case should make authors, publishers, film producers and media businesses look at the power of trade mark registration to secure strong rights.

In certain cases, it would now appear that the case for registering a trade mark has been strengthened by the decision in the Da Vinci Code case.

To see more about registering trademarks for films, television programmes or cartoon characters, go to the character merchandising page.

To see a full range of our trademark registration services, or how to register a trade mark, please visit the SITE MAP page.