It is strange to talk to a charming woman, who you'd imagine more as an owner of a fashion boutique or beauty salon, about the complexities of disputes over trademarks, patents and public tenders ... And although she’s rather pleasant to talk to, you feel that in legal matters you’d want her to defend you rather than have her as your adversary.
You are a specialist in industrial property. Is there a lot of controversy in this area? And what is mostly about?
In my practice, I most often encounter the issue of trademarks. In the phase of the opposition proceedings, they concern a potential conflict between the pending mark and the one that is already registered. In litigation, it is already a matter of enforcing claims for infringement of the rights to the relevant registered designation. Our law firm also deals with relatively extensive cases in the area of infringement of utility model and patent rights.
As that the issue of enforcing the rights of the owner from the registered utility model, and even more so from the patent, is to a large extent also a question of a technical nature, our office cooperates in this area with external patent attorneys. Nevertheless, as a lawyer, I always have to understand the whole, i.e. also the technical essence of the case in question, in order to be able to objectively argue not only legal but also technical objections. Naturally, this is on the level of lay understanding and the ability to interpret it at the court.
As far as the number of disputes is concerned, in my experience in trademarks a counterparty which infringes the rights of a registered sign, mainly for economic reasons, will come to an amicable settlement after the relevant arguments have been submitted (in opposition proceedings or court proceedings, in the case if applying a claim for an already registered mark, but often also when it’s still pending). In the opposition proceedings at the European Union Intellectual Property Office, there’s an institute of the so-called cooling-off period, which is directly enshrined for these purposes, i.e. a specified period during which the parties literally have the opportunity to "cool down" and start negotiations on a friendly settlement. This time-limit is usually sufficient for the parties to find a mutually acceptable compromise in the dispute.
I also focus on other areas of intellectual property rights, especially copyright, trade secret issues and domain disputes. The work in this area is very varied; it is not exclusively related to the litigation agenda. The main charm, at least from my point of view, is the connection between law and a certain special technical area, which I must first understand, and then I try to solve the legal problem.
To what extent is the law in this area unified within the European Union?
Clarity and coherence vary greatly in different areas of industrial property rights protection. I consider the area of trademarks and designs to be the most unilateral. A single application can register a trademark in all states of the European Union. The proceedings are under the auspices of the EU Intellectual Property Office, which prefers remote access via a very user-friendly interface, in any language of an EU Member State. All other communication with the Office takes place through this interface, such as opposition proceedings or renewal of an EU trademark. The registration of the Community model works similarly.
In the case of so-called European patents, the modification is currently somewhat more complicated. Although an application can be filed, it is then subject to validation in the proceedings in each of the Contracting States of the European Patent Organization in which the effects of the patent are to be applicable. Many Contracting States also require the applicant to translate the patent specification into the official language of the country.
Ensuring the protection of utility models is even more difficult. There is no unified protection for them at European level. When applying abroad, it is therefore always necessary to follow the relevant rules of the country. For this reason, applications for international patents and utility models are also very expensive and time consuming.
The chapter itself consists of the issue of enforcement of rights in the cases of individual protected types of industrial property. Personally, I consider it to be highly fragmented in all the above areas.
Are disputes in this area very complex and long? And if it comes down to an international dispute, what does it entail? Which country’s law governs the case?
In particular, litigation over patent and utility model infringement can take many years. This is due to the complexity of the issue. The technical solution which is the subject of the protection must be explained in detail to the competent court. The need for extensive evidence, which often turns into a professional battle of experts, also plays a crucial role. From my own experience, I can say that these litigations tend to be even longer and more demanding if the parties in the proceedings originally cooperated together in the development of the technical solution in question.
By contrast, litigation in respect of infringement of a trademark right may be described as a controversy of a legal nature, which does not require such essential professional requirements in relation to the providing evidence.
As for international disputes, it depends on a number of factors, especially what kind of industrial property it is or for which territory it is registered. It is also crucial whether it is a court dispute or whether the parties have reached an alternative solution in the form of arbitration.
Dispute proceedings in the area of patent infringement enforcement have been significantly simplified, on the basis of the Unified Patent Court Agreement, which has been signed by all Member States of the European Union, with the exception of Poland, Spain and Croatia. The owner of a so-called European patent is still required to file a lawsuit in each individual State in which the infringement is committed in the event of an infringement. The agreement envisages the creation not only of a European patent with unitary effect in those States which have ratified the agreement, but also of the existence of a Single European Patent Court, where possible disputes would subsequently be resolved with effects for all signatories of the agreement. However, the question is what impact the UK's withdrawal from the EU will have on this effort. By the way, I must point out that the Czech Republic has not yet ratified this agreement.
When you look at your profile on the HSP & Partners website, it says that in addition to industrial property, you also deal with real estate, public procurement, competition, labor law, and more. Isn't it difficult to stay up to date, remember all the changes, amendments, etc.?
You're right, my scope is very broad. On the other hand, no field of law can be seen in isolation. It very often happens that the case is intertwined in more areas and it is necessary to consider also even seeming connections, which, however, from the client's point of view will subsequently prove to be fundamental. A lawyer studies all his/her life, and I always remind our young colleagues that graduating from the School of Law and doing the bar exams are no end, but the very beginning. However, the constant changes make our field interesting and keep us on our toes.
If you are really busy, tired, how do you recharge your batteries? How do you clear your head best?
My colleagues can certainly confirm that dreams about work, or rattling thoughts around midnight around the end of a deadline haunt us all the time. Physical activity helps me the most, more precisely skiing and staying in the mountains. Fortunately, the whole family likes skiing. Both of my sons fell for this sport from a very young age. So sports, and best of all with my loved ones, are the moments when my mind rests.
JUDr. Lenka Příkazská
She was born in Přerov and graduated from the School of Law at Palacký University in Olomouc.
She was awarded her doctorate at the School of Law at Charles University in Prague.
Since 2001, she has been a partner of HSP & Partners v.o.s. law firm.
She is married and has two sons.
She enjoys reading and sports, especially skiing, she also dives and travels.
Law in the Czech Republic
Not only ordinary people, but often also politicians say that the legal situation in the Czech Republic is complicated, for many people unclear. "Personally, I perceive a fundamental shift that has taken place with the new Civil Code," says Lenka Příkazská. “Although it has been overwhelmingly criticized by the opponents, I believe that it has made a significant contribution to the search for justice and has backed up the until then very formalistic approach to law, which has often caused to manifest injustice. The Civil Code now clearly highlights the importance of the autonomy of will. For this reason, the new Civil Code prefers validity to invalidity, even in cases where the relevant legal acts do not meet all legal requirements and would have been found invalid according to the previous legislation regardless of the will of the actors. Naturally, we lawyers also perceive a degree of over-regulation in some areas, where our legislators often overreact to some deviations from the norm. They seek to cover them with a specific, narrowly focused legal rule, although more general legislations provide sufficient legal support. This makes the law confusing and difficult for the layman to understand."
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