In brief
- The Grand Board of Appeal at the EU Intellectual Property Office has refused trade mark protection for the signs ANIMAL FARM and 1984 in respect of content-related goods and services. The decision follows its rejection of the sign GEORGE ORWELL for similar goods and services in late 2025.
- There were a number of relevant factors behind the Grand Board's decision including the widespread fame of the books, their inclusion in education curricula, and their enduring popularity over several decades.
- While the decision does not rule out trade mark protection for titles of books/films etc, including famous ones, an applicant is required to show that the title would be perceived by the relevant public, not merely as designating the work itself, but primarily as an indication of the commercial origin of those goods or services.
- The Grand Board has called on EU legislators to consider creating EU-wide rights for work titles. This will raise interesting policy debates.
What is the ANIMAL FARM/1984 case about?
The author George Orwell died in London on 21 January 1950 at the age of 46. As a result, many of his famous books – including Animal Farm and 1984 – entered the public domain in the EU and UK, for copyright purposes, on 1 January 2021.
In 2018, no doubt anticipating Orwell's books entering the public domain, the Estate of the Late Sonia Brownell Orwell filed trade mark applications at the EU Intellectual Property Office for ANIMAL FARM and 1984 (alongside an application for GEORGE ORWELL). The applications covered a range of goods and services including recorded/digital media, printed matter, games and playthings, and entertainment/education related services. Following objections by the EUIPO examiner on the grounds that the signs were descriptive of a characteristic, namely the subject matter or content of the relevant goods or services, the Estate made divisional applications for ANIMAL FARM and 1984 (which led to the marks being registered for a range of other goods and services e.g., clothing etc).
The applications for 'content carriers' and services were ultimately considered by the Grand Board of Appeal, which has recently issued its decision. In refusing registration, the Grand Board defined the decisive question as being – would the title in question be perceived by the relevant public, not merely as designating the work itself, but primarily as an indication of the commercial origin of those goods or services? The Grand Board decided the answer was 'no', in large part due to the fame and cultural significance of the two titles.
The Grand Board's decision on the two book titles followed its decision towards the end of 2025, when it found that the name GEORGE ORWELL itself also could not function as a trade mark for similar goods and services, again because it was descriptive of them. In the GEORGE ORWELL case, the Grand Board had adopted a 'subject matter' analysis for assessing famous names: if the relevant public would immediately understand the name as describing what the goods/services were about or what they contained, the sign would be descriptive and non-distinctive.
The Grand Board also said that relevant factors in this assessment would include: fame and recognition; widespread dissemination and adaptation of the works; social and cultural integration such as prizes, institutions and commemorations; the length of time the author has been known and had remained in public discourse; linguistic derivations (such as 'Orwellian'); and market reality. The Board therefore concluded that the sign GEORGE ORWELL would be perceived by an English-speaking public (i.e., in Ireland and Malta) as an immediate reference to the author, and as an indication that the goods and services were about him.
The ANIMAL FARM / 1984 decision
Descriptive of goods and services relating to carrying content, and non-distinctive
The Grand Board found both ANIMAL FARM and 1984 to be descriptive of the relevant goods and services. The relevant public (again, the English-speaking Irish and Maltese public), would immediately recognise the signs as titles of the well-known literary works, taking into account the longevity, dissemination and cultural impact of the works. The Grand Board pointed out that the more popular or well known a literary work is, the more likely it was that its title would be readily recognised as referring to that work. It rejected the argument that this had the effect of treating the fame of the book as an arbitrary factor against registration, drawing a distinction between the reputation of a trade mark as opposed to the notoriety of a creation of the mind.
In particular:
- ANIMAL FARM had a high degree of recognition among the relevant public, and a clear conceptual meaning as the title of the famous novel. It had been described as "the most famous by far of all twentieth-century political allegories", signalling a significant degree of recognition, dissemination and significance of the work in society as a political allegory or fable. This was reinforced by other factors such as its prominence in an educational context; its wide dissemination through film, TV and theatre; and the passage of time since it had been published. Meanwhile, its narrative complexity was not a relevant factor in the assessment of the relevant public's perception of the sign.
- For similar reasons, 1984 enjoyed a particularly high degree of recognition among the relevant public. Again, the Grand Board concluded that it had acquired, in the perception of the relevant public, a clear and immediately recognisable conceptual meaning such that a significant part of that public would readily understand the sign as referring to the famous novel and its underlying political themes.
The Grand Board therefore concluded that both marks provided direct information as to the subject matter of the contested goods and services, and were descriptive. Further, they also lacked distinctiveness in relation to the relevant goods and services, again because they would be primarily perceived by relevant consumers as the titles of, or a reference to, George Orwell's famous novels.
What impact did copyright protection have?
The Estate argued that, as the novels were subject to copyright protection (at the time of filing the applications), the Grand Board should take into account the EUIPO Guidelines which state that, where copyright subsists, there is a presumption of good faith and the mark should, in principle, be accepted for registration.
The Grand Board indicated that the existence or absence of copyright protection may have a bearing on whether a designation is liable to be seen as descriptive of content or character, but it would not be determinative. Copyright could provide contextual background but could not, on its own, confer or preclude distinctive character. Indeed, once copyright has expired, this may lead to multiple adaptations reaching a wide audience, thereby strengthening the immediate association between the sign and the underlying work and its themes. This tends to suggest that trade mark applications for a book title should be made well in advance of expiry of copyright in the book itself.
Were the Estate's commercial activities relevant?
The Estate also relied upon its commercial activities in managing George Orwell's works, including Animal Farm and 1984. In particular, it relied upon the controls it puts in place on adaptations of the works through contractual arrangements. However, the Grand Board said these controls had little bearing on how consumers would perceive the contested signs given that commercial or licensing arrangements were not, as a rule, known to the public.
Other considerations
Given the outcome on descriptiveness/distinctiveness, the following aspects were considered on an obiter basis:
- The proposed marks were not contrary to public policy or accepted principles of morality. In particular, it would not desecrate George Orwell's prestige or renown to register the title of one of his main works as a trade mark.
- They were also not customary in the current language or in the bona fide and established practice of the trade for goods and services. Such an objection could however perhaps arise in another case – for example, where a title has been used to a significant extent as a common term to designate books themselves or books with certain characteristics.
- The titles also could not consist of a characteristic which gives substantial value to the goods.
- Finally, the marks were not misleading simply because the applicant was neither the author, their heir, or the holder of any copyright.
What book titles have been registered as trade marks?
Despite the outcome in this case, titles of books and films remain registrable. Further, the fame of a literary work is not, in itself, a ground for refusing registration. The key to registered trade mark protection is in demonstrating that the sign applied for has an indication of origin function in respect of the relevant goods/services, i.e., it has distinctive character. According to the Grand Board, a title will only fulfil the requisite trade mark function if the relevant public perceive it as departing from its primary descriptive role, and that it is "understood, first and foremost, as an indicator of origin."
The Estate had pointed to the fact that there are a number of book titles that have been successfully registered as trade marks for similar goods and services – in the EU these include GOLDFINGER, OLIVER TWIST, WINNIE THE POOH, HARRY POTTER AND THE GOBLET OF FIRE, THE DA VINCI CODE, PETER PAN, and THE HOBBIT. However, on the other side of the line, a number of book titles have been treated as descriptive for certain types of goods and services. Alongside now ANIMAL FARM and 1984, these include: THE JUNGLE BOOK, PINOCCHIO, THE DIARY OF ANNE FRANK (in Belgium and the UK), and various titles of books by Hans Christian Andersen (in Denmark). The UKIPO also in 2022 upheld objections against registration of ANIMAL FARM and 1984 in respect of similar goods and services (but, as with the EUIPO, allowed registration in respect of other goods and services).
Can book titles be protected as copyright works or in other ways?
Under both EU and UK law, a book title may be protectable as a copyright work. To do so, however, it would be necessary to show that the title meets the originality test, requiring that it is the author's own intellectual creation. In this case, the Executive Director of the EUIPO suggested that, where a title includes invented or fanciful terms related to the story or characters, it is more likely that it will meet the originality requirement. In each case, it will require an assessment as to whether the originality test has been met.
Alternative protections may be available in particular jurisdictions, including unfair competition law (passing off in the UK), or a sui generis form of protection (as in Germany and France).
Comment
The Grand Board concluded its decision in the ANIMAL FARM / 1984 case by recommending that the EU legislator consider whether an EU-wide right for work titles should be created. Whether this is an appropriate policy decision in light of the time-limited term of protection for copyright works (compared to potentially unlimited protection for registered trade marks) will be an interesting point of debate.
Meanwhile, the Grand Board's decision refusing registration for GEORGE ORWELL is under appeal to the EU General Court, and it seems likely that the Estate will therefore also appeal this latest decision. It is worth noting that the Grand Board's decision focuses only on inherent distinctiveness and so it is possible that, in other cases, an applicant may be able to demonstrate that the relevant signs have acquired distinctiveness as a result of the use that has been made of them.