Jan 2022

Czechia

Sections

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Contributing Firm

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1 . Trademark

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1.1. Sources of law

The principal sources of trademark law are as follows.

National sources:

  • Act No. 441/2003 Coll., on Trademarks (TA). It provides complex rules on trademarks. It contains both substantive law and procedural law.
  • Act No. 221/2006 Coll., on Enforcement of Industrial Property Rights. It contains provisions regulating enforcement of trademarks.
  • Act No. 89/2012 Coll., the Civil Code (CC). It contains provisions governing license agreements.
  • Act No. 355/2014 on Competence of Customs in Intellectual Property Enforcement. It established framework for customs seizures of counterfeits on the Czech internal market.

International sources:

  • Paris Convention for the Protection of Industrial Property of 20 March 1883.
  • Madrid Agreement Concerning the International Registration of Marks of 14 April 1891.
  • Protocol relating to the Madrid Agreement Concerning the International Registration of Marks of 27 June 1989 (with effect from 25 September 1996).
  • Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957.
  • Trademark Law Treaty of 27 October 1994.
  • Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of 15 April 1994.

European Union sources:

  • Directive (EU) 2015/2436 of 16 December 2015 to approximate the laws of the Member States relating to trademarks.
  • Regulation (EU) 2017/1001 of 14 June 2017 on the European Union trademark.
  • Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights.
  • Regulation (EU) No 608/2013 of 12 June 2013 concerning customs enforcement of intellectual property rights.

Court decisions:

Czech law does not expressly recognize the concept of binding precedents. However, it requires that court decisions are foreseeable meaning that a case should be decided similarly to other legal cases that have already been decided and that coincide in essential aspects with the case to be decided. Uniformity of decision-making practice is secured by the decisions of the courts of higher instances. The courts of the lower instances thus in practice generally follow the decisions of the courts of higher instances.

Furthermore, since the TA implements to a great extent the Trademark Directive, the Czech courts shall comply with the decisions of the Court of Justice of the European Union regarding the interpretation of the TA.

The use of a non-registered sign in the course of trade may constitute an opposition ground against a trademark application. In order for a non-registered sign to constitute the opposition ground, it is required that its user acquired rights to it prior to the filing or priority date of the opposed trademark application (i.e. the user has been using the said sign before the aforesaid date) and that there is a likelihood of confusion on the part of the public due to the identity or similarity of the respective signs and the relevant goods or services.

Non-registered signs may be protected under unfair competition. The difference between trademarks and non-registered signs consists particularly in the fact that the burden of proof in relation to infringement of a non-registered sign is more challenging, as the claimant needs to prove that it has been using the non-registered sign for relevant goods and / or services earlier than the defendant. On the other hand, in the case of trademarks, the registration is sufficient evidence of the existence of the complainant´s rights, whereas it is presumed that the trademark, if registered, is valid.

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1.2. Substantive law

Czech law recognizes well-known trademarks and trademarks with reputation. Legal concept of famous trademarks is not recognized under Czech law.

Under the TA, a well-known trademark is a trademark which is well-known in the territory of Czechia in accordance with Article 6bis of the Paris Convention and Article 16 of the TRIPS Agreement. A well-known trademark does not need to be registered in the Czech Trademark Register in order for it to confer rights on its owner in Czechia. The rights conferred by a well-known trademark in Czechia are identical as rights conferred by other types of trademarks recognized by the TA.

Trademarks with reputation enjoy a broader scope of protection. The scope of their protection extends to goods and services which are dissimilar to those for which such trademark is registered. Furthermore, the likelihood of confusion is no requirement to assume an infringement. Such trademarks are protected against later identical or similar signs provided that the use of the later sign takes without due cause unfair advantage of, or is detrimental to, the distinctive character or the reputation of the trademark.

The “aura of luxury” of a trademark is a supportive argument in order to prove that the use of the later sign takes unfair advantage of, or is detrimental to, the reputation of the trademark.

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1.3. Enforcement

The TA does not define the concept of the “reputation”. According to the case-law, the reputation implies a certain degree of knowledge of the earlier trademark among the public. It is required that the trademark is known by a significant part of the public although there is no fixed threshold of recognition.

When assessing whether a trademark has reputation, all the relevant facts of the case shall be taken into account (particularly, the market share held by the trademark, the intensity, geographical extent and duration of its use, and the size of the investment made by the undertaking in promoting).

Czech law does not provide for an exhaustive list of means of evidence which may be used for proving reputation of a trademark. Any means from which the status of the matter may be found may be used. Typically, catalogues, offering letters, leaflets, evidence of advertising activities, media presentations, sponsorship of cultural and sports events, information and printouts from websites, orders, invoices, delivery notes and surveys are used for the purpose of proving reputation. The evidence shall contain the trademark in question, have connection with the relevant territory and the relevant goods and services. Oral testimony is also possible although it is not commonly used in these matters. Affidavits claiming certain degree of use of the trademark are commonly used.

A trademark may be enforced against a domain name either by means of civil court litigation or alternative dispute resolution (ADR) proceedings. A trademark may be successfully enforced by means of civil court litigation in case the conditions for trademark infringement or unfair competition are fulfilled. In order to succeed, the disputed domain name needs to be used in the course of trade. If the disputed domain name is not actively used, its registration may still amount to unfair competition.

ADR proceedings are in practice independent of the trademark or unfair competition law. In order to succeed in .cz ADR proceedings, the trademark owner needs to prove, apart from the confusing similarity between the disputed domain name and the trademark, that either:

  • the disputed domain name has been registered or acquired by its holder without rights in the disputed domain name or a protected sign (such as trademark or tradename); or
  • the disputed domain name has been registered, acquired or is being used in bad faith.

A trademark may be enforced against a domain name in .cz ADR proceedings regardless of whether the domain name is actively used or not.

A trademark may be enforced against a trade name. However, the business activity of the entity having a conflicting trade name needs to be taken into account so that it can be assessed whether the trade name is used in relation to goods or services which are identical or similar to those for which the enforced trademark is registered.

The protection of a trademark against the use of other identical or similar distinctive signs depends on their kind. Generally, in case such signs are used in order to designate origin of goods or services, a trademark may be enforced against them.

Provided that the conditions of trademark infringement are fulfilled, a trademark may be enforced against metatags.

A trademark may be enforced against its unauthorized use in social media in the same way as against its any other unauthorized use.

A trademark may be enforced against its unauthorized use in comparative advertising if its use is in conflict with other laws (particularly the CC which provides for the conditions for admissibility of comparative advertising) and particularly if the comparative advertising unfairly benefits from the trademark or if it offers goods or services as an imitation or copy of goods or services identified by the trademark. A trademark may be enforced against comparative advertising not only if it harms its essential function but also if it harms any its other functions.

Czech law does not provide for a limitation on trademark rights which would allow use of a trademark in parody. However, this does not mean that a trademark owner may prohibit any unauthorized use of the trademark in parody as the fundamental right to property and freedom of speech are weighed against each other. Generally, the fundamental right to property would prevail in the case of a trademark being used in parody predominantly for a commercial purpose, or in case the use of the trademark in parody would unfairly benefit from the trademark´s reputation or cause a likelihood of confusion as to the origin.

It is possible to claim both trademark infringement and unfair competition for the same set of facts and to bring parallel trademark infringement and unfair competition proceedings.

Probably the most significant issue, particularly for luxury brands, is counterfeiting. There are cases where infringers offer a mix of genuine goods and counterfeits (particularly on online stores or through closed social media groups). As a consequence, the enforcement of trademarks by means of customs seizures and destruction is more challenging.

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2 . Copyright

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2.1. Sources of law

The principal sources of copyright law are as follows.

National sources:

  • Act No. 121/2000 Coll., on Copyright and Rights Related to Copyright (“CA”). It provides complex regulation of copyright and rights related to copyright including collective management of these rights. It lays down the conditions the work needs to fulfil in order to be protected by copyright. It also stipulates the rights arising from copyright and rights related to copyright, exceptions and limitation thereto, their duration and the provisions on its enforcement.

International sources:

  • Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886.
  • World Intellectual Property Organization Copyright Treaty of 20 December 1996.
  • Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of 15 April 1994.

European Union sources:

  • Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.
  • Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights.
  • Certain specific subject matters relating to copyright (such as computer programs, databases, performance´s rights and broadcasters´ rights) are regulated by further specific European Union Directives.

The Czech courts shall comply with the decisions of the Court of Justice of the European Union regarding the interpretation of the CA as far as its provisions implementing European Union law are concerned.

Generally, the European Union law takes precedence over Czech law. Regulations have immediate effect in Czechia. Directives need to be implemented into Czech law. In case a Directive is not implemented into Czech law within the prescribed time-limit, the Czech law shall be interpreted in accordance with the Directive and the Directive may even, under certain conditions, gain immediate effect in Czechia.

International treaties to the ratification of which the Czech Parliament has given its consent and by which Czechia is bound take precedence over Czech national law.

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2.2. Substantive law

The subject matter of copyright may be a literary work or any other work of art or a scientific work. The CA does not provide for a closed list of copyrightable works. It merely mentions types of works which may be protected by copyright.

In theory, objects of industrial, fashion or accessory designs are capable of protection by copyright. However, the Czech practice tends to impose a rather high threshold of originality and creative activity required for application of copyright protection to such works of applied arts (it needs to go beyond an average level of industrial design).

Copyright consists of economic and moral rights. The moral rights consist of:

  • the right to decide about making the work public;
  • the right to claim authorship, including the right to decide whether, and in what way, the authorship is to be indicated when the work is made public and further used, provided that the indication of authorship is normal in such use; and
  • the right to the inviolability of the work.

The economic rights cover:

  • the right to use the work in its initial form or in a form adapted by another person or otherwise modified, whether separately or in a collection or connection with any other work or elements, and to grant authorisation on a contractual basis to any other person to exercise that right;
  • resale right (Droit de suite); and
  • the right to remuneration in connection with reproduction of work for personal use and for legal person’s own internal use.

Unless otherwise agreed, the author’s economic rights to a work created by the author in fulfilling their duties arising from the employment contract shall be exercised by the employer in their own name and on their own account. The employer may only assign the exercise of the right pursuant to this paragraph to a third party with the author’s consent, unless this occurs when an undertaking or any part thereof is being sold. The author’s moral rights to an employee work remain unaffected.

As to non-employees, if a work is created by the author on the basis of a contract for work, unless otherwise agreed, it shall be deemed that the author has granted a licence for the purpose following the contract. If the work is not created on the basis of a contract for work, or in case the principal wishes to use the work for the purpose which goes beyond the contract for work, the principal needs to obtain a license for such a use.

Both moral and economic rights cannot be assigned. The economic rights may be only licensed. The license agreement does not need to be in writing, unless the license is exclusive. The author cannot transfer or waive their moral rights.

The economic rights generally last for the life of the author and 70 years after their death. The moral rights shall become extinct on the death of the author. After the death of the author no one may arrogate authorship of the work; the work may only be used in a way which shall not detract from its value and, unless the work is an anonymous work, the name of the author must be indicated, provided that such shall be a normal practice.

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2.3. Enforcement

Under the CA, copyright arises once the work is expressed in any objectively perceivable manner including electronic form. No copyright registration, deposit or notice is required for enforcing copyright.

Actual copying is not necessary to establish infringement of copyright. The copyright protection extends not only to copyrighted work in its initial form but also to form adopted by another person (including translation) or otherwise modified.

Copyright can be enforced against any infringing use of the copyrighted work regardless of whether the copyrighted work is unauthorized use as a protected IP right or as a part of it. As to the trademarks, the copyright constitutes an opposition and invalidity ground in case the use of the sign applied for may infringe on the copyright. There is no provision precluding enforceability against patents, however, it is difficult to imagine a situation in which a patent would use copyrighted work.

Copyright can be enforced against unauthorized use of a copyrighted work in social media under the same conditions as in case of any other unauthorized use.

Czech law does not provide for any explicit limitation of when it would not be possible to enforce copyright in comparative advertising. On the other hand, the likely conclusion would be that copyright cannot be enforced against the use of copyrighted work in permissible comparative advertising if the use of the copyrighted work is necessary for the legitimate comparative advertising. Such enforcement would not be deemed as legitimate or compliant with honest business practices.

A person who uses the copyrighted work for the purpose of cartoons or parody does not infringe copyright. The parody needs to humorously adapt the work or its features which may themselves be a copyrighted work. At the same time, the use of a work shall not conflict with the normal exploitation of the work and shall not unreasonably prejudice the legitimate interests of the author. The parody does not comply with the normal exploitation of the work if, for example, the work is used for the purpose of advertisement. The decision on whether the use of the copyrighted work falls within the parody statutory limitation will always require the comparison of the fundamental right to property and freedom of speech.

The CA provides statutory exceptions and limitations to copyright. These are applied only if the use of a work is not in conflict with its normal exploitation and it does not unreasonably prejudice the legitimate interests of the author. Probably the most significant exception is a free use of a work. Under this exception, the use of a copyrighted work for personal needs by a natural person without seeking to achieve direct or indirect economic benefit generally does not amount to copyright infringement. This exception also covers making a fixation, reproduction or imitation of a copyrighted work for personal use. The other statutory exceptions and limitations are, for example, quotation, use of a work located in public place or use of a work in periodical press or broadcasting.

The copyright is not subject to statute limitation except for the financial claims arising from copyright infringement (damages, immaterial harm, unjust enrichment) which are subject to limitation. The limitation period amounts to 3 years and commences from the date on which the copyright owner became aware of the damage / immaterial harm / unjust enrichment and the person liable to provide the compensation. In any case, such financial claims becomes time-barred no later than ten years after the date the damage / immaterial harm / unjust enrichment was incurred (15 years where it was caused wilfully).

There are no particular issues for luxury brands, mainly because copyright is not the primary legal instrument for IP protection of luxury brands. Trademark and design protection are easier to enforce for the reasons stated above.

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3 . Design

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3.1. Sources of law

The principal sources of design law are as follows.

National sources:

  • Act No. 207/2000 Coll., on the Protection of Designs and the Amendment to Act No. 527/1990 on Inventions, Designs and Rationalization Proposals (DA). It provides complex rules on designs and contains both substantive law and procedural law.
  • Act No. 221/2006 Coll., on Enforcement of Industrial Property Rights. It contains provisions regulating enforcement of designs.
  • Act No. 89/2012 Coll., the Civil Code (CC). It contains provisions governing license agreements.
  • Act No. 355/2014 on Competence of Customs in Intellectual Property Enforcement. It established a framework for customs seizures of counterfeits on the Czech internal market.

International sources:

  • Paris Convention for the Protection of Industrial Property of 20 March 1883.
  • Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of 15 April 1994.

European Union sources:

  • Directive 98/71/EC of 13 October 1998 on the legal protection of designs.
  • Regulation (EC) 6/2002 of 12 December 2001 on Community Designs.
  • Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights.
  • Regulation (EU) No 608/2013 of 12 June 2013 concerning customs enforcement of intellectual property rights.

For information on the precedence of the European Union law and international law over Czech law, please see Section 2.1.

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3.2. Substantive law

A design is the appearance of the whole or a part of a product consisting in the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation. A product means any industrial or handicraft item, including inter alia parts intended to be assembled into a complex product, packaging, get-up, graphic symbols and typographic typefaces, but excluding computer programs. These types of products are thus protectable by way of registered design in Czechia. The DA does not recognize national unregistered designs, but enforcement of Community unregistered designs is available.

In order for a design to obtain a registration, the design needs to be new and have an individual character. A design shall be considered new if no identical design has been made available to the public before the application or priority date. Designs shall be deemed identical if their features differ only in immaterial details.

A design shall be considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public before the application or priority date. In assessing individual character, the degree of freedom of the designer in developing the design shall be taken into consideration.

The right to the design belongs to the author or their successor in title. Where an author has created a design as part of their duties deriving from an employment relationship, by reason of the fact that he is a member of an organisation or of any other similar relationship, the right to the design shall pass to the person who assigned the task of creating the design ("the principal"), unless otherwise laid down by contract. In such a case, the author shall be required to notify the fact without delay, in writing, to the principal and to hand over documents required for assessing the design. Where the principal does not claim the right to the design within a period of three months as from receipt of the communication referred to above; the right shall revert to the author.

The above-mentioned process applies to employees and directors. As to consultants, shareholders and suppliers, the right to the design may be acquired only by means of an assignment.

Assignment of a design must be executed in writing, otherwise it is null and void. The assignment must be recorded in the Register of Designs of the Czech IPO in order to become effective. If the rights to a design pertain to two or more persons, the consent of all co-proprietors is required. A co-proprietor may assign their co-proprietorship interest to another co-proprietor without the consent of the others. A co-proprietorship interest may only be assigned to a third party if none of the other co-proprietors has accepted an assignment offer made in writing within one month.

No legalization or notarization of the deed of assignment is required.

In the case of an assignment agreement with consultants, shareholders and suppliers, it is prudent to stipulate that the rights to the designs created within a particular activity shall be assigned to the principal at the time of their creation and that these persons will make any declarations necessary in order to enable the registration of the design in the name of the principal.

The employment contracts and the contracts entered into with directors should contain acknowledgement of the fact that the right to the design shall pass to the employer / principal and that the employee / director shall notify the creation of a design without delay and in writing.

Moral rights cannot be waived or transferred.

Czech national registered designs as well as Community designs can be protected for five years from the filing date, extendible four times for a period of five years, up to total term of protection of twenty-five years

The DA does not protect national unregistered designs. However, unregistered Community designs enjoy protection of 3 years as from the date on which the design was first made available to the public with the European Union.

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3.3. Enforcement

The scope of protection is determined by the representation of the design as registered. The protection extends to identical designs and to designs that do not produce a different overall impression on the informed user. Protection does not extend to the features dictated by the technical function of the design or to features which must necessarily be reproduced in exact form and dimensions in order to allow the product in which the design is incorporated or to which it is applied to be mechanically connected to or placed in, around or against another product so that each of the products may perform its function. When assessing the scope of protection, the degree of freedom of the designer in developing the design shall be taken into consideration.

A design may be enforced against a trademark as the fact that a design or its 2D reproduction is used as (a part) of a trademark does not deprive the design from the possibility of being enforced. A design may thus be invoked as an opposition and invalidity ground. A design may be also enforced against a younger registered design. An enforcement of a design against patents, domain names, trade names and other similar IP rights is not precluded by Czech law, however, in practice an actual enforcement of a design against these rights seems to be merely theoretical.

A design may be enforced against its unauthorized use in social media under the same conditions as in the case of any other form of its unauthorized use.

It would be possible to enforce a design against its unauthorized use in comparative advertising only in the case that the conditions for permissible comparative advertising are not fulfilled (particularly if the comparative advertising unfairly benefits from the design or if it offers goods or services as an imitation or copy of goods or services impersonating the design).

Generally, a design can be enforced against its unauthorized use in parody. However, the freedom of speech would be weighed against the fundamental right to property. In case the freedom of speech is found to be stronger in a particular case, the use of the design in parody would be permissible.

Primarily, the alleged infringer may claim that the attacked sign produces a different overall impression and thus does not fall within the scope of the protection of the registered design.

Furthermore, the alleged infringer may argue that their act falls within one of the following limitations: acts committed for a) non-commercial purposes only; b) for experimental purposes; c) for the purpose of quotation or education, provided that such acts are in accordance with fair commercial practices and do not cause prejudice to the normal exploitation of the design and the source is quoted.

The alleged infringer may also argue that the design rights have been exhausted. The rights conferred by a design do not extend to acts relating to a product incorporating the design or to which the design has been applied, which has been entered on the market in the European Economic Area by or with the consent of the design proprietor.

The alleged infringer may also raise the “prior user rights” defense. The rights conferred by a design are not enforceable against third persons who can prove that before the filing or priority date, they have commenced or have undertaken serious preparations to use a design falling in the scope of protection of the design registration, if such used design has been created independently of the enforced design. Those persons are authorized to use the industrial design for their business activity, in which the prior use has been made or prepared.

The alleged infringer may also file an application for cancellation of the enforced design. Such applications are heard exclusively by the Czech IPO. The alleged infringer may afterwards request the court to suspend the infringement proceedings until the decision on the application is issued by the Czech IPO. However, since rights conferred by a design are time-limited, the Czech courts tend not to suspend the infringement proceedings in such cases.

The repair clause is not recognized by Czech law for Czech national designs and there is no comparable limitation.

The rights conferred by the design are not subject to statute limitation except for the financial claims arising from design infringement (damages, immaterial harm, unjust enrichment) which are statute limited identically to the financial claims arising from copyright infringement (see Section 2.3).

Furthermore, it follows from Czech case-law that longer-term acquiescence in the use of an infringing sign weakens the design proprietor´s claim as the court is not likely to consider the claim as urgent and serious since the design holder has not taken the appropriate legal steps earlier.

The protection under copyright law, civil law or trademark law remains unaffected. Therefore, a claim may be based on design infringement and copyright infringement and/or unfair competition law in the same proceedings.

The most significant issue is probably counterfeiting. For more information, see Section 1.3.

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4 . Right of privacy, publicity and personal endorsement

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4.1. Sources of law

Czech law recognizes certain individual's rights such as the right to one’s name, the right to one´s image, the right to one’s dignity, honour, privacy, expressions of personal nature. When the scope of protection of these rights is assessed, these rights are compared to other fundamental rights such as freedom to speech.

The principal law relating to the right of publicity is the Act No. 89/2012 Coll., the Civil Code (CC). The CC provides for personality rights of an individual including protection of individual´s image and privacy.

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4.2. Substantive law

Each living human has a right of publicity. No other conditions need to be satisfied.

The CC does not expressly stipulate that the right of publicity is transmissible mortis causa. Generally, in the event of the death of an individual, the personality rights of that individual cease to exist and do not transfer to their heirs. On the other hand, the protection of personality rights of a deceased individual may be claimed by any of their close persons. The entitlement of the aforesaid persons covers the protection of the personality rights. There is no case-law addressing whether the aforesaid persons may grant consent to the use of individual’s name, image, likeness, or other unequivocal aspects of their identity. However, since such personality rights are generally closely connected with the individual, it may be argued that the aforesaid persons do not have right to grant such a consent.

The right of publicity cannot be assigned in whole or in part. The individual may only grant the authorization to use a certain element of their right of publicity.

Under the CC, capturing the image of an individual in any way that would allow their identity to be determined is only possible with their consent. Furthermore, the image of an individual may only be distributed with their consent. Therefore, generally, an image of an individual may be captured and distributed only with the individual´s consent regardless of whether the image is used for a commercial or non-commercial purpose. Strictly speaking, the consent to capturing and distributing individual´s image cannot be considered as a license as according to the CC, the license means consent to the use of intellectual property within which the rights of personality do not fall. There is no case-law on whether the consent to capturing and distributing of individual´s image may be granted on an exclusive basis.

Czech law does not prescribe any form for the consent to capturing and distributing of individual´s image. The consent may be also granted implicitly.

A person who consented to the use of documents of a personal nature, portraits or audio or video recordings relating to an individual or their expressions of a personal nature may withdraw their consent, even if granted for a definite period. Such a person is thus generally not limited in withdrawing the consent and he/she does not need any reason for doing so. However, if consent granted for a definite period is withdrawn without it being justified by a substantial change in circumstances or any other reasonable cause, the withdrawing person shall compensate the person to whom he granted the consent to the resulting damage.

The CC does not expressly address the death of the licensor. As mentioned above, an individual may grant consent to the use of certain aspects of their individuality. Such consent, however, cannot be considered as license within the meaning of the CC. On the other hand, it can be argued that the consent remains valid and effective even after the death of the individual granting the consent and that the consent binds the successors.

The close persons of a deceased individual may claim the protection of their personality rights. On the other hand, since it can be argued that consent to the use of certain aspects of individuality remains valid and effective even after the death of the individual and binds the successors, it is probable that the close persons of a deceased individual shall respect the granted consent and cannot claim protection against the use which falls within the granted consent.

The right of publicity is not transmissible mortis cause. The right of the close persons of the deceased individual to claim protection of the personality rights of the deceased individual is not time-limited.

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4.3. Enforcement

The right of publicity may be enforced against any use (i.e. not only against a commercial use) provided that such use does not fall within any statutory limitation.

It is not necessary to prove that the individual’s name, image, likeness, or other unequivocal aspects of one's identity have a commercial value to obtain an injunction or other remedies for the unauthorized use. On the other hand, in practice, the amount of immaterial harm incurred by the individual will depend on the commercial value of the above-mentioned aspects.

The infringer may claim the following statutory limitations.

  • Exercise or protection of other rights. The image, or audio or video recording capturing an individual is made or used to exercise or protect other rights or legally protected interests of others.
  • Official purpose. The image, document of a personal nature or audio or video recording is made or used by means of a statute for official purposes.
  • Public act in matters of public interest. The image, document of a personal nature or audio or video recording is made or used where someone performs a public act in matters of public interest (e.g. public speech).
  • Scientific or artistic purposes. The image or audio or video recording is reasonably made or used for scientific or artistic purposes.
  • Print, radio, television or similar coverage. The image, or audio or video recording is reasonably made or used for print, radio, television or similar coverage.

The above-mentioned limitations may not be used unreasonably in conflict with the legitimate interests of the individual.

The images of celebrities are commonly misused in online advertisements where these images are used as a part of promotion of certain dubious products or services without their authorization. Another issue is the advertising made by celebrities in collaboration with brand owners on social media. In case celebrities promote any product within social medias for the consideration received from the brands owner and do not disclose the collaboration (which commonly happens), such an activity may be considered as illicit advertising and thus unfair commercial practice.

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5 . Product placement

Product placement is permitted provided that the statutory conditions are fulfilled. Product placement is permitted only in cinematography works, movies and series created for television broadcast or for on-demand audio-visual media services, and in sport and entertainment programmes except for programmes for children. It is also allowed in case there is no payment but only the provision of certain goods or services free of charge, such as production props and prizes, with a view to their inclusion in a programme.

The programmes containing product placement shall fulfil the following conditions:

  • their content and, in the case of television broadcasting, their scheduling shall not be influenced in such a way as to affect the responsibility and editorial independence of the provider of on-demand audio-visual media services or of the broadcaster;
  • they shall not directly encourage the purchase or rental of goods or services, in particular by making special promotional references to those goods or services; and
  • they shall not give undue prominence to the product in question.

The product placement is not allowed in relation to cigarettes, other tobacco products, electronic cigarettes and their cartridges, or in relation to products of a person whose main business activity consists in manufacture or sale of the above-mentioned products and in relation to medical products or medical processes which are available only on prescription in Czechia.

The programmes containing product placement shall generally be clearly marked as such at their beginning, end and in case of their interruption by advertisement or teleshopping, also after the end of the termination. This is usually done by the sign “PP” depicted within the program.

In case the other party fails to perform the agreement, the particular possibilities available to the brand owner will depend on the content of the contract. Generally, the brand owner would be entitled to damages. Furthermore, in case the breach of the contract is fundamental, the other party may withdraw from it without undue delay. If a contract obliges to provide continuous or recurrent activities or provide a progressive partial performance, it is possible to withdraw from the contract only with effect from that moment onward. Withdrawal from a contract does not affect the right to be paid a contractual penalty or default interest if already due and the right to be compensated for damage resulting from a breach of a contractual duty.

Based on the content of the contract, the other stipulated remedies may be available. In case the brand owner withdraws from the contract, or the contract is terminated in any other way and the placing party continues in product placing, it is probable that the brand owner is entitled to demand termination of such placing (although there exists no case-law confirming the aforesaid).

Luxury brand owners should pay particular attention to the way in which the product is presented within the product placement. Fines for undue prominence of a product within product placement have already been imposed on broadcasters several times by regulatory authorities.

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6 . Protection of corporate image and reputation

Czech law protects right to name of legal entities and their reputation and privacy. 

The legal entities do not have to fulfil any certain conditions in order to enjoy the right of publicity and privacy. It is presumed that a legal entity has reputation until it is proved to the contrary. The reputation is assessed on a conduct of the legal entity in commercial relationships.

It is possible to include specific clauses in agreements aimed at protecting the corporate image and reputation provided that these clauses comply with antitrust law.

Generally, a system of selective distribution is permissible provided that it complies with the following conditions:

  • the nature of the goods requires system of selective distribution;
  • the sellers shall be chosen on the basis of objective criteria of qualitative nature which is identical for all potential sellers and which is not applied in a discriminatory way; and
  • the criteria shall be strictly necessary.

Generally, a provision setting a certain (minimum) price or prohibiting purchase of non-original but otherwise legitimate spare parts and components are considered as anticompetitive and thus forbidden.

A provision setting out a contractual penalty for breach by a party of any provisions protecting reputation or corporate image of the other party is generally not forbidden, but it must be assessed as to compliance with antitrust law.

Luxury brands face the issue of sale of their products outside the system of selective distribution, particularly in outlets and online. As to third-party providers, the owners of luxury brands (particularly car brands) face the issue of unauthorized providers of repair and maintenance services using the owner´s trademarks in a way causing a false impression as to the commercial relationship between the providers and the owners of luxury brands.

EXPERT ANALYSIS

Preface

Nicolas Martin
Sheila Henderson

Chapters

Belgium

Moana Colaneri

Brazil

Luiz Edgard Montaury Pimenta
Marianna Furtado de Mendonça

China

Rebecca LIU
Yunze LIAN

Cyprus

George Tashev
Ioanna Martidi
Maria Hinni
Nasos Kafantaris

France

Sophie Marc

Germany

Wiebke Baars

India

Dhruv Anand
Kavya Mammen
Pravin Anand
Sampurnaa Sanyal
Udita M Patro

Italy

Fabrizio Jacobacci

Japan

Koichi Nakatani

Netherlands

Herwin Roerdink
Nadine Reijnders - Wiersma
Tjeerd Overdijk

Russia

Anastasiia Kuznetsova
Igor Nevzorov
Polina Semina

South Korea

Dae Hyun Seo
Won Joong Kim

Spain

Carolina Montero
Eleonora Carrillo
Fernando Ortega
Ignacio Temiño
Jorge Oria
Rubén Canales

Taiwan

Crystal J Chen
Nick J.C. Lan

Turkey

Özlem Futman
Yasemin Aktas

United Kingdom

Rosie Burbidge

United States

Alan Behr
Tod M. Melgar
Yann Rim