July 2026 The recent decision of the Grand Board on the registrability of the titles of George Orwell’s most famous novels, “ANIMAL FARM” and “1984”, provides a long-awaited answer to the previously unresolved question of whether the titles of well-known books, films and other creative works can be protected as trade marks in Europe (and, to cut a long story short, the answer is no!).
Back in 2018, The Estate of the Late Sonia Brownell Orwell applied to register the word marks “ANIMAL FARM” and “1984” as EU trade marks.
The application to register “ANIMAL FARM” covered goods and services in classes 9, 16, 28 and 41, whilst the application to register “1984” covered goods and services in class 41 only. The specific goods are services for which protection was sought included a number of content-related goods and services, such as DVDs, books, games, toys and entertainment services.
The EUIPO partially refused both applications, on the basis that they were both descriptive and non-distinctive in respect of these content-related goods and services.
The Estate appealed the partial refusal of the marks and, in 2020, the Board of Appeal referred both appeal cases to the Grand Board, with the rationale that the existing case law on the registrability of titles of well-known books, films and other creative works was diverging and needed clarification.
The Grand Board recently dismissed both appeals, finding that the marks are descriptive and lack distinctiveness.
Finding of Descriptiveness
The Grand Board first assessed the descriptiveness of the marks and, in order to do so, they defined the relevant public as the average consumer in either Ireland or Malta. Ireland and Malta were elected specifically because these were considered the EU countries with the closest connection to the UK, where George Orwell’s novels are believed to be the most well-known.
The Grand Board quickly arrived at the finding that it is common knowledge among average consumers in Ireland and Malta that both “ANIMAL FARM” and “1984” are titles of George Orwell’s novels. This was a straightforward conclusion to draw based on the novels’ long-lived and widespread fame in these countries, as well as other contributing factors such as their frequent inclusion in educational curricula and numerous adaptations into plays, films and television series.
The fact that both novels have particularly complex dystopian narratives was not considered, by the Grand Board, to be relevant. Specifically, the Grand Board confirmed that a decision on whether titles are considered to be common knowledge among the relevant public cannot be taken based on the degree of complexity of the narrative but, instead, should be based on whether the relevant public would readily associate the titles with commonly understood ideas or characteristics (and, in this case, the Grand Board were satisfied that “ANIMAL FARM” and “1984” would be readily associated with such ideas and characteristics).
Despite having found that it is common knowledge among the relevant public that both the marks are titles of famous novels, the Grand Board acknowledged that the marks should not automatically be considered descriptive in nature, merely because they are the titles of well-known books.
Instead, the Grand Board explained that the marks should only be considered descriptive in nature if they are directly and immediately perceived by the relevant public as describing the subject matter of the content-related goods and services in question (i.e. those in classes 9, 16, 28 and 41).
Applying this assessment, the Grand Board found that classes 9, 16, 28 and 41 do include content-related goods and services which would be perceived by the relevant public as immediately and without further thought connected with the themes and narratives of the George Orwell’s novels, Animal Farm and 1984.
Accordingly, the Grand Board concluded that both marks are descriptive, on the basis that they would each be immediately recognised by the relevant public as, exclusively, a description of the goods or services and not, as is required for registrability in Europe, also as an indicator of source origin.
Finding of Non-Distinctiveness
Whilst the Grand Board accepted that the relevant public typically relies on titles and authors to identify and select books, films and other content-related goods, they noted that to identify the commercial origin of said goods the relevant public tend to rely, not on the title or author, but on the publisher or other trade indicators.
Hence, the Grand Board found that, whilst it is not disputed that “ANIMAL FARM” and “1984” are famous enough to be immediately perceived as titles of literary works written by George Orwell, when used as word marks in connection with the relevant content-related goods and services, the marks will merely be understood by the relevant public as referring to George Orwell’s literary works and not as an indicator of commercial origin.
Accordingly, the Grand Board also found that both marks lacked distinctiveness.
Interplay Between Trade Marks and Copyright
Whilst the Grand Board acknowledged that titles of books, films and other creative works can be protected by both copyright and by trade mark law, they noted that the ability for these two types of rights to exist in parallel does not render such titles exempt from the usual requirements of EU trade mark law.
The Grand Board then went on to recognise that copyright may constitute a relevant factual consideration, for example by shaping market conditions and, thus, influencing consumer perception. However, they subsequently concluded that the mere fact copyright subsists in a work is not, alone, enough to render the work distinctive. Applying this logic to the case in hand, the Grand Board found that the copyright subsisting in George Orwell’s literary works had not given rise to specific market conditions capable of altering the descriptive perception of the marks and, thus, it was not sufficient to confer distinctive character.
Hence, the Estate’s argument that the interplay with copyright confers registrability failed.
Final Comments
Accordingly, the Grand Board found that the titles of George Orwell’s novels, Animal Farm and 1984, although undeniably famous, both lack distinctive character and, thus, are not registerable as trade marks in Europe.
Although it may seem somewhat counterintuitive that fame should be to the detriment of distinctive character, this decision may serve as a reminder that fame only indicates that a mark is well-known, but not necessarily that it serves as a successful indicator of commercial origin which is, of course, a key requirement of registrability in Europe. To put it another way, this decision might also be viewed as a warning to rights holders to think wishfully and register the titles of their works early, before they become too famous and it is too late!
It seems a large factor in the Grand Board’s decision was the principle that authorship does not equate to indication of origin and the related finding that consumers distinguish between the author and the publisher of well-known books and, apparently, only associate the publisher with the commercial origin.
This strict divide between authorship and origin seems somewhat unrealistic and, perhaps, in reality consumers are more likely to appreciate that literary books can have two sources – the first being the publisher and the second being the author (the latter, in most cases, probably having a more significant influence in the consumer’s perception).
Interestingly, the Grand Board seem to have gone some of the way towards acknowledging this, in that they have explicitly encouraged the EU legislator to consider whether it is worth creating a new EU-wide right, specifically for titles of well-known creative works, indicating that this decision might just be the first chapter of a much longer story!
