Originally published in Managing Intellectual Property
The Supreme Court of the Czech Republic as a court of third instance confirmed the decision of the Regional Court in Ostrava and High Court of Appeal in Olomouc that it was really a question of an unfair competition if a competitor (in this case defendants) used for marking arms by a denomination consisting of letters "CZ" and completed by numerical or perhaps other denomination, which the plaintiff had previously used for marking arms in the course of his entrepreneurial activity.
Main objections of defendants laid in the fact that the letters "CZ" are a generally used abbreviation for the Czech Republic and therefore lack distinctiveness and cannot be a subject of any protection. Above arguments were rejected in the appeal proceeding due to the fact that the plaintiff did not apply for a protection of a denomination "CZ" only, but for a denomination created by these letters and completed by a numerical marking. Such completed denomination became characteristic for plaintiff products on the market. If the defendants used such denomination for marking identical products – arms, the Court of Appeal decided that such act fulfilled a fact in issue of unfair competition as it raised a danger of a confusion and parasiting on a good reputation of the competitor (i.e. plaintiff).
Considering defendants objections the Supreme Court as a court of third instance stressed in his decision (32 Odo 155/2004) that it was immaterial that the denomination "CZ" was not sufficiently distinctive and as such not capable to be protected for marking products of some competitor. Similarly it is also immaterial whether a changeable numerical indication lacks distinctiveness and only very exceptionally may protect a cluster of numbers against unfair competition. On the ground of facts completed by precedent courts the Supreme Court concluded that the plaintiff had for a long time and significantly in advance from the defendants used for marking his products-arms a denomination CZ together with a numerical indication (model series) and eventually with some other letter or word supplement, consequently a certain combination, where the letters CZ had a permanent position. The precedent courts confirmed that the use of such a combined denomination had became characteristic for plaintiff production. The defendants had unlimited possibility to use for their products other denomination. If they later on used for their product a denomination with the same letters CZ, even on the same place in the name of the product, it was correct to provide the plaintiff a protection in order to prevent a deceit of the public. With regard to the specification of entrepreneurial activity of participants and limited number of competitors in the actual situation on the market it is supposed that the defendants knew the way how the plaintiff had for a long time denominated his products. According to the aforesaid the Supreme Court concluded that the precedent courts decided correctly with regard to the defendants about the facts of unfair competition.
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