The possibility of protecting the title of intellectual works is much debated, principally in the case of audiovisual works, especially television programs. The Brazilian Copyright Law expressly prohibits protection of titles in isolation, as per article 8, VI, according to which titles shall only be protected together with the work.


To try to get around this situation, broadcasters and audiovisual media owners seek industrial property as a means of protecting their creation. This leads to numerous trademark registrations with names of even potential programs and/or works, which are requested principally in classes 38 and 41, which refer to "telecommunications" and "entertainment, sports, and cultural activities", respectively.


It so happens that the Industrial Property Law, in article 124, also prohibits the protection of titles of works (item XVII), noting, however, that this prohibition is restricted to "titles that are not protected by copyright" and are susceptible to causing confusion with the original work/title.


There is an apparent dichotomy in the legislation, since, despite the express prohibition in the Copyright Law, its predecessor (the Industrial Property Law) provides for the possibility of having a copyright on titles, without, however, determining what these titles might be, or even whether there are scenarios and/or requirements in this regard.


Although there is no settled opinion in the courts on this subject and no unified scholarly position, there are those who defend the position that original and distinctive titles may receipt protection, since in Brazil all creations of the intellect are protected, without requirements of novelty, originality, creativity, or even a debate and/or provision with regard to what an intellectual work is and/or what a copyrighted work would be; there is only one negative judgment of what is not protected.


In this manner, the existence of protection for titles of works is defensible when, by their nature, they can be classified as protected works and have a close connection and identification with the work to which they refer. As an example, we could quote: "Eternal Sunshine of the Spotless Mind", "The Girl Who Sailed to the Enchanted Realm on the Boat She Herself Made” [“A Menina que Navegou ao Reino Encantado no Barco que ela Mesma Fez”] "I would receive the worst news from your beautiful lips" [“Eu receberia as piores notícias de seus lindos lábios”] or even "How to Raise Your I.Q. by Eating Gifted Children" [“Como aumentar o seu Q.I. comendo crianças superdotadas”].


Likewise, because of their distinctiveness, it is also possible to claim protection of such titles by combating unfair competition, since the use of the same title in a new creation regardless of its nature within the areas of intellectual property, if it is likely to create confusion for the public and/or the consumer, thus leading them to believe that there is some connection between the works, falls within the legal framework of unfair competition. More specifically, one can claim parasitic use of the creation/work of others.


Considering these issues, and despite the prohibition in the Copyright Law, holders of intellectual works that have an interest in protecting the title of their works in isolation, if these titles have a certain originality, creativity, and are not in common use, may seek protection under the law, in particular by means of industrial property, either through the registration of a trademark or through the fight against unfair competition.