ADVERTISING: THE INTERFACE BETWEEN COPYRIGHT AND UNFAIR COMPETITION FROM AN

INTERNATIONAL PERSPECTIVE

By SALDIVAR-LEMUS Itzel Zacki and SLEZÁKOVÁ Hana

LL.M. Intellectual Property

Torino, 2012

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ADVERTISING: THE INTERFACE BETWEEN COPYRIGHT AND UNFAIR COMPETITION FROM AN INTERNATIONAL PERSPECTIVE

By SALDIVAR-LEMUS Itzel Zacki and SLEZÁKOVÁ Hana

ROAD MAP 1. INTRODUCTION

2. REGULATION OF ADVERTISEMENT UNDER THE COPYRIGHT SYSTEM 2.1.General principles of Copyright contained in International Treaties relevant for

advertising 2.2.Rights granted under the Copyright system 2.3.Advantages and inconveniences of protection of advertisement under Copyright

system.

3. REGULATION OF ADVERTISEMENT UNDER THE UNFAIR COMPETITION SYSTEM

3.1.Unfair Competition elements defined on an international level applicable to advertisement and its implementation in different jurisdictions;

3.2.Case-law on unfair competition in relation to Copyright relevant for advertising;

3.3.Advantages and inconveniences of regulation of advertisement under Unfair Competition law.

4. INTERFACE BETWEEN COPYRIGHT AND UNFAIR COMPETITION IN REGULATING ADVERTISEMENT

4.1.Approaches from different systems; 4.2.Copyright and Unfair Competition principles efficient to regulate the use and

exploitation of advertising.

5. CONCLUSIONS BIBLIOGRAPHY

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1. INTRODUCTION

Advertising can be defined as a “paid non personal communication from an identified sponsor using mass

media to persuade or influence an audience”1. It is a special area within the marketing discipline. It is

"simply the communication of a sales or persuasive message designed to affect attitudes or behaviors

toward the advertised product"2.

Advertising is an important tool used by firms to allocate their products and services on the market. It is not

longer the simple announcement for commercialization of goods or services made by a businessman but a

sophisticated tool to catch consumers used by firms3. Enterprises made huge investments in financial, human

and creative resources to produce seductive and unique advertisements used to persuade consumers on the

uniqueness of their products/services. In the last century, advertising evolved from basics pamphlets

distributed in streets to mass media transmitted in radio, television and even on the Internet. Therefore, it is

important to evaluate if jurisdictions, borders and different legal approaches may become an obstacle to

allow an advertising campaign working in the most efficient way.

The concept of advertising includes (i) advertising ideas4, (ii) advertising concepts5 and their materialization

in advertising campaigns6. All of them may contain (i) texts, (ii) pictures, photographs and figures, (iii)

audiovisual productions and other spots7. Accordingly, there are intellectual creations protected under

Intellectual Property Rights (IPRs) that are part of the advertising activity. The most common are regulated

in the following fields:

                                                                                                                         1W. WELLS, J. BURNETT & S. MORIARTY, Advertising, principles and practice, 6th ed. 2003 cited in L. P. RAMSEY, Intellectual Property Rights in advertising, in Mich. Telecomm. Technology Law Review 2006, 198, available at http://www.mttlr.org/voltwelve/ramsey.pdf, access 17. 11. 2011. 2 http://www.advertising-for-small-businesses.com/advertising-definition.html, access 19. 11. 2011. 3 WORLD INTELLECTUAL PROPERTY ORGANIZATION, Managing Intellectual Property in the Advertising Industry, Creative Industries – Booklet No. 5, 120 ff., 5 f. Available at http://www.wipo.int/ip-development/en/creative_industry/pdf/1021.pdf, access 17. 11. 2011. 4 Advertising idea is the basic conception on how to advertise a product or service. In S. PRESENTI, An Advert: A protectable work or an idea?, in CW 1992, 20-28ff., at 22 f. 5 Advertising concept represent the main advertisement idea in the most developed way. “The elements of planned advertising are put into context with one another in order to form a uniform work, at least in the form of sketches that can imply a creative choice and arrangement.” Once the way of selection and arrangement involve enough amount of originality, advertising concept can be qualified as a Copyrightable work. In G. SCHRICKER, Copyright Protection for Advertising Ideas, Concepts and Campaigns Under German Law in 28 IIC, 4, 477-507 ff., at 497-498 ff. 6 Advertising campaign is “a coordinated series of linked advertisements with a single idea or theme.” If the campaign is successful, it may be used by an advertising company for several months. In http://www.businessdictionary.com/definition/advertising-campaign.html, access 2. 12. 2011. 7 It is important to consider that in general terms, the advertising idea may not contain any of those elements already materialized and completely defined; however, at least their first drafts to be further developed and integrated to the advertisement shall exist.

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(i) Distinctive signs such as Trademarks and Trade Dress;

(ii) Copyright and;

(iii) Unfair competition dispositions in relation to IPRs;

For the purpose of this paper, advertising elements protected as Distinctive Signs are not discussed, as their

scope of protection has been broadly and deeply discussed in almost all jurisdictions by law or case law and

in many publications.8 On the contrary, in case of advertising creations protected under Copyright and

Unfair Competition law, there are neither statutory provisions nor international standards established.

Therefore approach by Courts differs in each jurisdiction and sometimes, even from case to case within the

same Country. Accordingly, this document studies the way advertising is regulated by Unfair Competition

and Copyright law. It studies as well as the legal impact that such regulations and different approaches may

have in this industry. The former considering that the approach from both fields is opposite in some

jurisdictions and complementary in others.

The jurisdictions studied in this paper are the European Union (EU), Unites States of America (US) and

Latin America (LA). Regarding to the EU, we are making references to the most advanced legislation and

case law, as well as the opposite postures within the region. From US, we are using the most advanced

doctrines developed by Courts. We are also making reference to some countries of LA, which are the less

advanced systems among the jurisdictions studied however they have shown some approaches that may be

efficient solutions to implement.

The proposed study is developed in three main parts. The protection provided to intellectual creations

applicable to advertisement under the Copyright system is discussed in chapter 2. Regulation of

advertisement that the unfair competition system may impose to creations protected under the Copyright

system is studied in chapter 3, as well as the different approaches in different jurisdictions. The interface

between the two mentioned systems and the elements to be considered to harmonize in order to provide with

fair and efficient protection are discussed in chapter 4.                                                                                                                          8 For example: J. R.FERRÁNDIZ GABRIEL, X. O'CALLAGHAN MUNOZ, Jurisprudencia sobre propiedad industrial, publicidad y derecho de la competencia, Wolters Kluwer, Madrid, 2007; I.TCHOTOURIAN, Droit de la publicité et de la promotion des ventes en matière de presse écrité, Éditions Publibook, Paris, 2004; W. SAKULI, Trademark Protection and Freedom of Expression: An Inquiry Into the Conflict Between Trademark Rights and Freedom of Expression under European Law, Wolters Kluwer, Alphen aan den Rijn, 2011

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To sum up, this paper has as objective the study of the manner in which advertising is regulated by the

Copyright and the Unfair Competition systems in different jurisdictions. It also aims to evaluate the different

postures taken. Using that information and considering that many advertising campaigns are designed and

launched regionally and/or on the Internet, we are proposing some degree of currently not existing

harmonization. This, because different or opposed approaches may impose legal burdens that affect or deter

the efficiency of the industry.

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2. INTERNATIONAL COPYRIGHT REGULATIONS APPLICABLE TO ADVERTISEMENT

Copyright system regulates the relationship between the right holder of a work and the public that can access

or use such work.

2.1. General principles of Copyright contained in International Treaties relevant for advertising

The main principles of Copyright system applicable to the regulation of advertising are defined in the Berne

Convention for the Protection of Literary and Artistic Works (“Berne Convention”)9. This was incorporated

by reference in the Agreement on Trade-Related Aspects on Intellectual Property Rights (“TRIPs”)10 and the

WIPO Copyright Treaty (“WCT”)11.

The most relevant principles provided in the Berne Convention and adopted in TRIPS are:

(i) Automatic protection12;

(ii) The dichotomy idea/expression;

(iii) Originality requirement;

(iv) Geographical and temporal delimitation of protection.

It is important to point out that the first one is not going to be developed in this paper as in general terms it

does not represent substantial problems to the protection to the advertising industry. In relation to the others,

we consider pertinent to point out the following:

                                                                                                                         9 According to its preamble, its objective and purpose is “(…) to protect, in as effective and uniform a manner as possible, the rights of authors in their literary and artistic works”9. In a broader sense, the objective of the initial Copyright system was to offer appropriate incentives for further creative activity. In WORLD INTELLECTUAL PROPERTY ORGANIZATION, Guide to the Copyright and related rights treaties administered by WIPO and glossary of Copyright and related rights term, World Intellectual Property Organization, Geneva, 2003, 330 ff., at 7 f. 10 It emerged as consequence of the evolution of trade, the internationalization of commercial relationships and the impact of IPRs in such transactions. TRIPs incorporated basics principles of Copyright system already provided by Berne Convention (except from protection of moral rights), made the scope of protection broader (i.e. the subject matter extended to computer programs, a new right of authors´ to authorize rent of their work was granted ) and included also sui generis systems as options to protect certain types of creations that involved substantial investments in their creation but did not fit properly in the already defined standards due to their nature (i.e. Databases , Layout-Design of Integrated Circuits and Industrial Designs) 11 It was created as a response to the expansion of the use of internet and its involvement in the distribution of works. The main aim of WCT was to assimilate principles of Copyright drafted in analogue time (in Berne Convention) to digital time. 12 Provided in Article 5 (2). It allows the right holder to benefit in any country of the Union from Copyright protection without the obligation to comply with any formality. Nevertheless member states remain free to require fixation of a work according to Article 2 (2). Fixation means to capture a work in some material form, including storage in an electronic (computer) memory. Traditionally it is a condition required in common law countries however, almost all Latin American civil law countries demand fixation (Mexico, Argentina and Brazil are examples of this).

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A. Dichotomy idea/expression: Protection is granted exclusively to expressions and not to mere ideas

as the later are the source to produce works and its protection would create unreasonable obstacles to

creativity and trade.13 With respect to advertising for example, the idea of using a feather to present any

product associated to lightness cannot be appropriated. Consequences of the dichotomy in advertising may

be summarized as follows:

(i) Difficulties to determine where the unprotected idea ends and the protectable expression starts, as it

is evaluated case by case, according to the rules established in each jurisdiction that may vary from

time to time, even inside the same Country.14

(ii) Authorship derives from the work’s expression and not from the idea. If a person has a brilliant idea

that communicates to another and the latest develops it and expresses it in an original way, the

authorship would belong to the second one. This become relevant in advertising because the

(unprotected) smart and humorous idea on how to advertise a product or service is generally more

valuable and require more effort than its expression. This allows companies to profit from unprotected

advertising ideas provided by agencies or consumers without any compensation or authorization from

them.

(iii) Copying an idea does not infringe Copyright. As ideas are not protected, different people can use the

same idea to produce different works irrespectively if they are competitors or not. This was the case of

the advertisements created by Lavazza and Nespresso15 where no Copyright infringement could be

claimed when Nespresso (a direct competitor of Lavazza) used the same idea (associate coffee with

paradise in certain scenarios and circumstances) to advert related products.

                                                                                                                         13 WORLD INTELLECTUAL PROPERTY ORGANIZATION, Guide to the Copyright and related rights treaties administered by WIPO and glossary of Copyright and related rights terms, supra at note 9, at 292 f. 14 French jurisprudence is an example of this, as in two similar cases, opposite rulings were issued. Using a flower behind a exhaust pipe in cars as a symbol of non pollution was considered Copyrightable arguing that it was originally expressed, intelligent and with sense of humor (In Simens v Sonauto, the Court of Appeal of Versailles, April 20th, 1995). On the opposite, a diverse French Court dismissed the action of the plaintiff in relation to a claimed Copyright infringement arguing the copy of the motif of “whiteness compared” in an advertisement for washing powder. The Court stated that the advertisement idea is not Copyrightable (In Lever v Procter et Gamble, the Court of Appeal of Paris, April 22th, 1969). In P. WILHELM & C. BETTATI, La protection des idées publicitaires, in 248 Légipresse, 2008, available at http://www.wilhelmassocies.com/La-protection-des-idees-publicitaires-article-paru-dans-la-revue-Legipresse-n-248-janvier-fevrier-2008-par-Pascal_a136.html, access 16. 09. 2011. 15 Such controversy was resolved by the Institute for Auto-Discipline in Advertising (Instituto Dell´Autodisciplina Pubblicitaria), in the ruling n. 122/09. Copyright infringement was not part of the controversy.

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(iv) The concept of idea and expression may merge in certain creations. It is a trend in jurisprudence to

determine that the expression of an idea cannot be protected when such idea can only be expressed in

very limited forms. This, because the protection of such narrow subject matter would limit further

expressions of the idea. An exclusive right over such expressions would imply protection of the idea,

as the few expressions available would be restricted for private exploitation. Accordingly, the idea of

advertising products with snowflakes or a Christmas tree during Christmas time cannot be

appropriated.

B. Originality: There is neither explicit reference nor definition of originality in any international treaty

nevertheless, it is considered to be an obvious requirement.16 There is no harmonization to define neither this

concept nor its scope. However, some elements are standardized: originality is linked neither to any artistic

merit or value nor to the purpose of the work. It is related to the way a work comes into existence

(creativity). In any case, the level of creativity required in each jurisdiction is not uniform17. This lack of

harmonization becomes relevant as it may produce that the same advertising work to be used in more than

one country or distributed on Internet is qualified to be protected by Copyright law only in some

jurisdictions.

C. Geographical and temporal delimitation of protection: Copyright protection is valid on a

territorial basis and for certain period of time. The scope of rights and protection granted is determined by

national law. As long as Member States of Berne Convention and/or TRIPs agreement comply with the

general principles contained therein, it is up to each country to determine whether a work can be protected or

not. Consequently, rights of the same author over the same advertising work may significantly differ from

one jurisdiction to another. It may even be possible that a work is protected only in certain jurisdictions.

Additionally, the interpretation of the law to determine if there is an infringement in relation to such work is

                                                                                                                         16 This can be corroborated from the minutes of Diplomatic Conferences where the Berne Convention was revised. In WORLD INTELLECTUAL PROPERTY ORGANIZATION, Guide to the Copyright and related rights treaties administered by WIPO and glossary of Copyright and related rights terms, supra at note 9, at 23 f. 17 The main differences are between civil law systems and common law ones, as the first ones generally require a higher level of originality. In the European Union, an intention to minimally harmonize this requirement has been seen in Directives that deal with Copyright matters.

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made on a territorial basis. Furthermore, the duration of the protection may also vary from jurisdiction to

jurisdiction.18

In relation to this, it is important to consider the content of Article 8 of WCT. This, because the right of

communication to the public explicitly confers the faculty to the right holder to control if a work is made

available to the public in a way that such public may chose the time and place of access to it. No reference to

territoriality is made, as technology allows interchanging information and many types of works regardless

any boarder or jurisdiction. In any case, the recognition of this right in the WTC may represent an advance

in the advertising industry for undertakings that create the same advertisement for various markets, regions

or countries and especially if they are distributed online. Nonetheless, this recognition is still not resolving

the problems described in the section below.

2.2. Rights granted under the Copyright system

Rights granted under the Copyright system are: moral rights and economic rights. In general terms, moral

rights granted in each jurisdiction are not harmonized apart from the mandatory and basic ones established

in Berne Convention19. It is important to point out that even when they are not relevant for the purpose of

this paper (as personal interests in advertising industry are lower than in other creative sectors as

consequence of the commercial function of advertisements20) they may be related to some important topics

for the industry21.

                                                                                                                         18 According to TRIPs, the minimal period of protection should last the life of the author plus 50 years after their death. Post mortem protection is extended in several jurisdictions: in EU it lasts 70 years and in Mexico 100 years. 19 Rights of paternity and integrity are mandatory according to Berne Convention. Common law systems generally do not grant additional moral rights; civil law countries strongly protect personal involvement of authors in works and therefore go beyond the minimum protection. 20 However, moral and economic rights may be equally important for some exceptional successful campaigns. This is the case of the litigation related to the MasterCard’s campaign “Priceless” (“There are some things money can't buy, for everything else, there's MasterCard”) taking place in Brazil, Paraguay and Chile. Two Argentinean advertisers (Edgardo Apesteguia and Luis Alberto Moreno) are suing MasterCard and McCann Erickson (the advertising agency that claims authorship over the campaign) arguing that they were the creators of that campaign in Paraguay. They affirm that MasterCard used such campaign and later modified it with the help of McCann Erickson with neither authorization nor further compensation to the original authors. In this litigation, moral rights issues have been raised together with economic rights infringement. 21 On one hand, advertising companies and creators are generally interested in claiming the authorship of the creative advertising campaigns, as it serves as a sign of the quality and effectiveness of their work. On the other hand, advertising agencies and creators may want to object the use of their advertisements in any derogatory way, as it may harm their reputation. Right of integrity of the work may represent also some issues for this industry, as from time to time successful advertisings are modified for different private and commercial purposes.

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On the other hand, economic rights are a quite well harmonized field worldwide. According to the relevant

Conventions, all authors have the same rights: creators of adverts have the same prerogatives than painters,

writers and other “traditional artists”. Nevertheless in advertising, the importance of economic rights is

considerably lower. This, because the revenues came mainly from the sales gained using the work as a tool

and not from the exploitation of the work in the traditional way. For the same reason, the need and even the

interest in enforcing the economic rights differ: for the traditional creative industry, authors are supposed to

largely enforce their rights; in advertising industry, right holders are interested in the distribution of the

works without the need of their authorization or the payment for each reproduction of the work. In fact, the

infringement of economic rights by the public at large may produce an opposite (desirable) effect: the

increase of sales.22 In addition, the advertising industry is absolutely dynamic; starting legal actions against

infringers does not produce an effective outcome, as the time that a trial takes generally exceeds the time

that the advertisement is used. As consequence of this, it seems that the traditional economic protection

under Copyright system is not determinative for the functioning of the advertising industry.

2.3. Advantages and inconveniences of protection of advertisement under Copyright system

Protection under the Copyright system represents some advantages to the players in the industry. As long as

Copyright system prevents others (competitors) to freely copy their works, such legal protection in many

cases enables undertakings to recoup their investments made in advertisement. Furthermore, despite of its

primary commercial function, creative advertisement undoubtedly reflects culture of different societies and

therefore Copyright protection is coherent with the core of the Copyright system. Additionally, even though

some features of the traditional Copyright system do not properly fit in the advertising industry, Copyright

system provides at least with minimal legal certainty to determine which expressions may be protected and

which ones could be freely used. Consequently, it is less costly to have this protection than to wait until a

suitable special protection is developed and harmonized.

                                                                                                                         22 For example, if a person makes an unauthorized copy of advertisement transmitted on TV and uploads it on Internet, such person will infringe the rights of reproduction and communication to the public from right holder. However, such infringement may be extremely useful for the purpose of advertising and consequently, the right holder will not want to stop such conduct.

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On the other hand, due to the dominant commercial function of advertisement and derived from the fact that

originally Copyright system was not created to protect kinds of work as advertisement, there are also

inconveniences. Creativity and artistic value in advertisement are used only as tool to attract consumers; it is

not the purpose of advertisement23. Furthermore, some Copyright provisions are not coherent with the

activity of the advertising industry, for example:

(i) The length of protection. From the perspective of the undertakings, users and in some cases creators, it

may be excessive. This, because advertising is a very dynamic field and the use of a campaign is

generally not more than one year. On one hand, undertakings and other creators may be interested in

using or adapting the previous successful campaigns created or used by others. Furthermore, users

may be interested in freely use that representation of their culture. On the other hand, for creators of

successful and lasting campaigns (as the campaign “Priceless” from MasterCard), a longer protection

is more convenient.

(ii) The lack of protection to ideas. Considering that in advertising, the highest amounts of investments

and creativity are allocated to develop the clever idea to advert a product or service, from the point of

view of authors and undertakings, this may be a deficit that may be convenient to fulfill. Nonetheless,

users and public at large may be affected if such protection is absolutely granted.

(iii) The economic rights granted. From the perspective mainly of undertakings and users, they are

excessive, as the purpose of the advertising is to be circulated and seen by the largest possible amount

of the potential consumers (users). However, from the point of view of authors and advertising

agencies, at least certain amount of economic rights shall remain.

In conclusion, Copyright system does not provide with perfectly suitable protection to players in the

advertising industry, however, some principles have proved to be useful to regulate the use, creation and

exploitation of advertisements (further discussed in section 4.2.).

                                                                                                                         23 L. P. RAMSEY, Intellectual Property Rights in advertising, supra at note 1, at 218 f.

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3. REGULATION OF ADVERTISEMENT UNDER THE UNFAIR COMPETITION SYSTEM

Unfair Competition law regulates the relationship among competitors and between competitors and

consumers. It aims to ensure the efficient operation of a market economy24. Unfair Competition provisions

were introduced into Industrial Property because the granting of IPRs has an impact on the market operation.

In many systems, the Unfair Competition action is considered a residual action to Intellectual Property

Infringement.

3.1.Unfair Competition elements at the international level applicable to advertisement and its

implementation in different jurisdictions;

International provisions in relation to Unfair Competition applicable to advertising are contained in the Paris

convention for the Protection of the Industrial Property (“Paris Convention”)25, TRIPs26 and the Model

Provisions on Protection against Unfair Competition27 (“WIPO Guidelines”). Paris Convention and TRIPs

refers to Unfair Competition in relation to Industrial Property. WIPO Guidelines are not legally binding

nonetheless, they contain recommended provisions to prevent Unfair Competition and include the

interpretation and reasoning behind the content made by the World Intellectual Property Organization

(“WIPO”). Consequently, they have served as basis for many studies and doctrine in this topic, as well as

guidelines for drafting legislation in this matter. We use them in this paper as reference, as they contain the

interpretation from WIPO and up to some extent they reflect some good standards already developed in

some jurisdictions. In accordance to the formerly mentioned documents, Unfair Competition shall be

defined considering the following elements:

                                                                                                                         24Originally unfair competition law aimed to protect fair businessman against dishonest practices from others competitors in the market. Later on, the rationale of the protection was extended in order to reflect also protection of consumers and the public at large. In WORLD INTELLECTUAL PROPERTY ORGANIZATION, Protection against unfair competition: analysis of the present world situation, World Intellectual Property Organization, Geneva, 1994, 96 ff., at 11 f. 25 The first reference to Unfair Competition was made at Brussels revision of the Paris Convention (1900). As consequence of further revisions, a general concept of unfair competition and a non-exhaustive list of examples were included. 26 It extended the protection to undisclosed information. 27WORLD INTELLECTUAL PROPERTY ORGANIZATION, Model Provisions on Protection against Unfair Competition, Articles and Notes, World Intellectual Property Organization, Geneva, 1996. 68 ff.

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A. Scope of IPRs covered by Unfair Competition provisions. Obligation for Member states to

prevent Unfair Competition acts was agreed exclusively in relation to conducts performed in connection to

any Industrial Property Right28. Nonetheless, Article 1 (2) of WIPO Guidelines provides that Unfair

Competition shall constitute a supplementary and independent protection to all kinds of IPRs, including

those related to literary and artistic works29. This means that Unfair Competition Provisions shall apply in

addition to any kind of protection granted by any IPR. This criterion is applied by countries as Italy30,

France, Czech Republic and US. In Italy, the scope of provisions preventing Unfair Competition acts in

relation to Copyright is limited. In the last three examples, in case of misappropriation of ideas in

advertising campaigns, as generally Copyright infringement cannot be claimed, Unfair Competition

remedies may still be available. Nonetheless, as there are no minimal standards, we find contradictory

doctrines and precedents in different jurisdictions and from time to time, even within one Country. On the

opposite, countries as Mexico and Argentina limit the scope of the Unfair Competition system to acts related

to Industrial Property Rights. Accordingly, in these jurisdictions, in case a competitor uses the same

advertising idea, only damages may be claimed through civil actions, with no reference to Unfair

Competition31.

B. Competition relationship between the parties. Paris Convention and TRIPs do not provide

anything in this respect. The content of Article 1 (1) (a) of the Model Provisions from WIPO does not

require direct competition between the party committing the unfair act and the affected one. The former,

because competition in the market can be adversely influenced even if there is lack of competition32. This

approach is adopted for example in Mexico and France; countries were direct competition is required are

United States and Czech Republic, for example. This becomes relevant in advertisement to determine if the

                                                                                                                         28 Reference made in the Paris Convention is explicitly related to distinctive signs. In any case, as such treaty refers only to Industrial Property (Patents, Utility Models, Industrial Designs, Marks and Trade Names), the general obligation to prevent unfair competition may be construed only in relation to such kind of rights. TRIPs extended this protection to undisclosed information (industrial property). 29 WORLD INTELLECTUAL PROPERTY ORGANIZATION, Model Provisions on Protection against Unfair Competition, Articles and Notes, supra at note 27, at 14-15 ff. 30 See Law 633 of 1941 for the Protection of Copyright and Neighboring Rights, Article 102. 31 It is important to point out that such kinds of actions do not serve appropriately whether to stop the conduct in a period of time coherent with the duration of the campaign, nor to get a proportional indemnification. Furthermore, to get an indemnification, the detriment suffered and the link with the conduct needs to be proved. 32 WORLD INTELLECTUAL PROPERTY ORGANIZATION, Model Provisions on Protection against Unfair Competition, Articles and Notes, supra at note 27, at 10 f.

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act committed by non competitors (for example, when the undertaking uses the advertising developed by an

agency) may qualify as Unfair Competition.

C. Honest practices as the basis to assess unfairness. Paris Convention defines Unfair Competition as

“any act of competition contrary to honest practices in industrial or commercial matters”33. There is no

further reference to define honesty or unfairness contained in any Treaty. According to WIPO Guidelines,

honest practices need to be assessed on a case by case basis, considering the relevant sector of the commerce

or industry, the time when it happened and the territory where it was performed. The notion of unfairness

depends on the economical and social factors surrounding the conduct, the ethical development of the

society, the area of commerce where the act takes place and the particular time. Such circumstances need to

be assessed autonomously by authorities in each jurisdiction34. Generally all Member States follow this

criterion however, in the case of acts involving undertakings from different countries, approaches differ.

Model Provisions recommend assessing the honest practices established in international trade35. Countries

generally assess fairness according to national practices. In any case, it is generally understood as unfair any

act of misappropriation of efforts from an undertaking by other, sometimes conditioned to that the later

receives or it is likely to receive a benefit from such misappropriation.

In the case of advertising, there are generally conduct codes in each jurisdiction developed by Self

Regulatory Bodies. As generally a relevant number of undertakings are part of those private entities, such

standards can be used by Courts to assess unfairness as they reflect the accepted practices in the industry.

However, as membership is not compulsory, only controversies generated between members are necessarily

resolved in accordance to those standards.

                                                                                                                         33 Paris Convention for the Protection on Industrial Property, Stockholm revision (1967) and amended on 1979, available at http://www.wipo.int/treaties/en/ip/paris/trtdocs_wo020.html#P19_137, access 09.01.2012 34 WORLD INTELLECTUAL PROPERTY ORGANIZATION, Model Provisions on Protection against Unfair Competition, Articles and Notes, supra at note 27, at 8 f. 35 In the case of advertising, there is even an Advertising Code drafted by the International Chamber of Commerce that may be used as one factor to determine the unfairness of a conduct in this field.

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3.2. Unfair Competition in relation to Copyright relevant for advertising

A. Unfair Competition in relation to advertisement. The most relevant cases have taken place in US

and France. In US, to declare Unfair Competition practices in relation to imitation in advertisement, Courts

basically have set up two principles: (i) there has to be a competition relationship between the parties and (ii)

generally, mere appropriation of another´s advertising idea, method or matter does not constitute Unfair

Competition as such. Actual or at least potential deception of consumers needs to be proved. This criterion

was confirmed in many precedents, as Heuer v Parkhill36. Similarly in France, to claim Unfair Competition

in case of imitation of advertising concepts it is necessary to prove that the defendant (not necessary a

competitor) not only used the same idea, but that this act created a risk of confusion. This approach was

adopted for example by the Court of Appeal of Toulouse on September 15th, 200537.

B. Appropriation of ideas not protected by Copyright. Jurisdictions where this topic has been

broadly discussed are US and France. In the case International News serv. v Associated press38, US Supreme

Court admitted that imitation of a subject matter excluded from Copyright shall be considered as Unfair

Competition when one undertaking appropriate results, skills, effort and/or investments of another to get a

profit. There is also a differentiation between the limited proprietary interests in the idea against a

competitor who would attempt to take advantage of it, and the impossibility to stop the public to access to

that information not protected under Copyright. This precedent was not subsequently applied. In posterior

cases, proving imitation was not enough; actual or potential deception needs to be proved to allege Unfair

Competition.39 In France, protection against imitation can be also based on the doctrine of free riding.

Professor Jérôme Passa40 affirms that in case of use of subject matter excluded from protection under IPRs,

appropriation of results of any effort and investment from others shall be considered by itself as Unfair

                                                                                                                         36In this case, a real state agency was found liable for committing an act of Unfair Competition for using the same slogan in its advertising as the name of one publisher of newspaper. In Heuer v Parkhill 114 F. Supp. 665 (W.D. Ark. 1953), available at http://www.leagle.com/xmlResult.aspx?xmldoc=1953779114FSupp665_1628.xml&docbase=CSLWAR1-1950-1985, access 1. 12. 2011 37 CA Toulouse, 15 septembre 2005, n° RG 04/03493, n°JurisData 2005-294131. In P. WILHELM & C. BETTATI, La protection des idées publicitaires, supra at note 14. 38International News serv. v Associated press 248 US 215 (1918) http://supreme.justia.com/us/248/215/, acces 1. 12. 2011 39 W. COLSEY III, The Protection of Advertising and the Law of Copyright, in Advertising and the Law of Copyright, available at http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/cpyrgt11&div=7&id=&page=, access 30. 09. 2011. 40J. PASSA cited in P. WILHELM & C. BETTATI, La protection des idées publicitaires, supra at note 14.

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Competition (free riding). Nevertheless, to prove free riding, it is necessary more than mere imitation:

likelihood of confusion and minimal amount of originality of the imitated advertising idea need to be

demonstrated.

3.3. Advantages and inconveniences of regulation of advertisement under Unfair Competition

law.

Protection under Unfair Competition law seems to be pertinent for advertising due to its commercial nature.

As adverts nowadays have an important role to influence consumer´s decisions on the market, Unfair

Competition regulation is necessary to keep the market efficient and balanced. Without the appropriate

protection against Unfair Competition, advertisement would be still produced but the market would be

distorted. In that respect the main function of the law against Unfair Competition is not to protect the

advertising industry but the correct operation of the market.

Notwithstanding the foregoing, it is important to bear in mind that Unfair Competition needs to be assessed

by Courts on a territorial basis, according to the fair practices in the relevant sector and with respect to the

standards established at the respective moment. Thus, Unfair Competition cannot be harmonized.

Accordingly, campaigns globally or regionally produced may face different approaches and this creates legal

uncertainty. Moreover, due to the scope of compulsory obligations to prevent Unfair Competition, this

system does not serve to protect ideas developed in advertisement campaigns or any other creation protected

under Copyright in all Countries. Therefore, abuses in this regard may be legally performed.

In conclusion, up to now, Unfair Competition law system does not provide with enough legal certainty to

players in the advertising industry. However, it has been proved that in some cases, it is a useful tool to

prevent abuses and distortion of the market derived from the use of advertising.

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4. INTERFACE BETWEEN COPYRIGHT AND UNFAIR COMPETITION IN

REGULATING ADVERTISEMENT

4.1. Approaches from different systems

A. US. In this jurisdiction, Unfair Competition and Copyright systems are independent; therefore

Copyright infringement can be claimed without the need to claim Unfair Competition and on the other way

around. Both actions can be also brought together; for example, it is possible that an act of misappropriation

lead simultaneously to the action for Copyright infringement as well as Unfair Competition. This was

implicitly confirmed by the US Supreme Court in the case Hurn v. Oursler41 when the Court decided that

one single court has jurisdiction to adjudicate a claim of Unfair Competition when joined with a related

claim of Copyright law. In any case, Unfair Competition Action started together with a Copyright

infringement shall always be considered a supplementary action to Copyright.

B. France. French law allows bringing an action by Copyright infringement jointly with the claim of

Unfair Competition. The French Court of Cassation emphasized that the simultaneous action are the most

appropriate, especially when the Copyright infringement imply also likelihood of confusion. This because in

case of counteraction, each claim aims to protect different interest: the claim for Copyright infringement

protect right of the right holder and the claim for Unfair Competition act aims to protect also the public at

large.42

C. Czech Republic. Unfair Competition Law is independent from Copyright Law. Copyright

infringement may be claimed as well as act of Unfair Competition law at the same time.43 There are no

rulings available that supports this posture in relation to advertising, as most of the Controversies in this

field are resolved by the Arbitration Commission of the Council of Advertising (a private body which

                                                                                                                         41 Hurn v. Oursler, US 238 (1933). In W. COLSEY III, The Protection of Advertising and the Law of Copyright, supra at note 39 at 50 f. 42French Court of Cassation, January 14th, 2003. In P. WILHELM & C. BETTATI, La protection des idées publicitaires, supra at note 14. 43 This possibility results from the logic of Czech Unfair Competition system. It is based on general clause specifying general conditions that define any unfair conduct (§44 Para. 1 of the Commercial Code) plus a constellation of conducts that constitute Unfair Competition as well. Accordingly, if the specific conduct does not fall in one of the specifically listed unfair acts, unfair competition can still be declared as long as it is proved (i) the competition relationship between parties; (ii) that the activity is against honest practices in competition and; (iii) that such conduct is capable of damaging other competitors or consumers. According to Petr Hajn, any use of foreign labor, foreign ideas, foreign investment funds to conduct a competitive goal is against honest practices in competition and therefore constitute act of Unfair Competition. In P. HAJN, Ke vztahu autorského a soutěžního práva., in Obchodní právo: časopis pro obchodně právní praxi, 1995, Prospektru, Praha.

18    

characteristics are explained below). However, this criterion was held by the Czech Supreme Court,

upholding the decision from the Appellate Court in the case of the traditional Czech toy Krteček.44

D. Italy. The Italian Act 633 of 1941 Law for the Protection of Copyright and Neighboring Rights

provides with a limited protection against Unfair Competition in the field of Copyright. Even though some

creations incorporated in an advertising campaign may be protected under this law neither advertising as

such, nor advertising ideas may be included45. Therefore, despite an interface between Copyright and Unfair

Competition systems is recognized, such interface is not relevant for advertising. Moreover, as well as in

Czech Republic, controversies in this field are generally resolved by the “Institute for Auto-discipline in

Advertising” (private entity), according to the Code for the Auto-discipline in Commercial Communication.

It is important to point out that doctrine have considered that the violation of such Code46 constitute an illicit

appropriation of merits (free riding) and therefore, such conduct would be a dishonest practice that

characterizes any Unfair Competition act47.

E. Mexico. Under Mexican law, there is no interface between Copyright and Unfair Competition.

Mexico only fulfills the basic obligation of preventing Unfair Competition in relation to Industrial Property

therefore, there is no legal basis to claim it in relation to creations protected under the Copyright48. Any

Unfair Competition action in relation to creations protected by Copyright would be dismissed by Courts, as

there is neither legal basis to study it, nor competent Courts to do it. Civil actions for damages still available

but no Unfair Competition arguments can be used. These actions are not the optimal manner to prevent

dishonest practices in this field, as an actual economic detriment, an unlawful act and a link between them

needs to be proved with no reference to unfair competition. Furthermore, in Mexico there is also a private

                                                                                                                         44 This case was related to production and distribution of illegal copies of the toy. It was alleged parasitic exploitation of the reputation of the enterprise and creation of likelihood of confusion. In Czech Supreme Court, September 23th, 2011, 23 Cdo 2500/2010. 45 Protection granted by article 102 is in relation to the reproduction or imitation in other works of a similar nature of headings, emblems, ornamentation, arrangements of printing signs or characters, or any other particularity of form or color in the external appearance of an intellectual work, when such reproduction or imitation is capable of creating confusion between works or authors. 46 In particular, the transgression to article 13 of such Code that prevents the slavish imitation of any commercial communication, even it is referred to products that do not compete in the market, when there is a likelihood of confusion. Such provision also refers to the need to avoid the profiting from the name, market, notoriousness and image of other undertaking, when such profit is unjustifiable. 47 M. AMMENDOLA, L´Appropriazione di priegi, Dott. A. Giuffre Editore, Milan, 1991. 116 ff., at 103-110 ff. 48 See article 213 of the Mexican Industrial Property Law

19    

body called Council for Auto-regulating and Ethic in Advertising where controversies in relation to

advertising can be resolved, as explained below.

F. Self regulatory bodies. In Advertising, there are Self Regulatory Bodies in almost all jurisdictions

(including Czech Republic, Italy, Colombia, Mexico and Argentina). Such entities develop their own self-

regulatory Codes on Advertising enforceable between members. Such rules do not replace legal regulation

but are complementary, as they can be used to define standards of honesty and good practices in a territory

and in relation to the relevant advertising Industry. Contrary to legislation, self-regulations are generally

flexible and respond quickly to any change in the advertising and media market. Generally, they go further

than legislation in determining what may be allowed and considered fair. Its principles may combine

Copyright and Unfair Competition principles and sometimes, even trademark ones. Examples of efficient

codes that deal with imitation in advertising are the ones from Italy49 and Czech Republic50.

In relation to the enforcement of rulings issued by Self Regulatory Bodies, it is important to consider that as

they have the backing of the advertising industry, in most cases advertisers accept their decisions, even if

they do not agree with them. In case of non compliance, such Bodies generally have a variety of ways of

enforcing their decisions. These include, for example, advising the media to refuse the advertisement,

adverse publicity through the publication of decisions, the withdrawal of trading privileges such as

preferential mailing rates, or expulsion from trade associations. On those rare occasions where all else fails,

the Self Regulatory Bodies may refer the case to the statutory authorities, who have the power to prosecute

                                                                                                                         49 Using this code, the Institute for Auto-discipline in Advertising resolved the following controversy: Lavazza S.p.A. launched an advertising campaign named “Paradise”. In this campaign, all the scenarios were related to the paradise, which were associated to the coffee distinguished by the brand Lavazza. Later on, Nespresso Italiana S.p.A. and Nestlé Italiana S.p.A launched its own advertising campaign where many scenes took place in the paradise. Adverts made a direct reference between the trademark and heaven. Nespresso alleged that the idea of paradise could not be appropriated and therefore, it had the right to advertise their products by associating them with paradise. The Institute resolved that there was an unlawful imitation. It was considered that Lavazza campaign involved many creative elements reproduced by Nespresso, as the paradise environment and the appearance of a person with authority. It was argued that such elements were created by Lavazza therefore there was no legitimate reason for Nespresso in using them. In Instituto dell’Autodisciplina Pubblicitaria. May 14th, 2010, Case (Pronuncia) N. 122/09 Luigi Lavazza S.p.A. v Nespresso Italiana S.p.A. and Nestle Italiana S.p.A.. 50 Recently, the Arbitration Commission decided a case between Czech branch of the mobile operator Telefonica O2 and US Company KGB on the basis of this Code. KGB complained to the Council of Advertising that Telefonica copied their advertising concept. Telefonica's advertising campaign launched in 2008 the number “1188” to be dialed from the mobile to get information and assistance. The advertising featured two men dressed in white costumes with black stripes and red numbers 11 and 88 in the chest. KGB launched a campaign with the assistance number “118 118” in 2002. The Arbitration Commission decided that both campaigns were remarkably similar and therefore Telefonica O2 infringed Article 4.1. (3) of the Advertising Code. The Arbitration Body resolved that “Advertisement cannot be similar to other advertisements by general appearance, depictions, using slogans, visual presentation, music or sound effects, so that it would be likely to confuse consumers or that using such advertisement one undertaking would use ideas and effort of another”. In Commission of Arbitration, November 1st, 2011, Decision of the 042/2011/STÍŽ, KGB v Telefonica O2.

20    

the advertiser51. Moreover, procedures/arbitrations before the Self regulatory Bodies are faster compared to

the judicial procedures. Nevertheless it is only possible to start a complaint against members of the self

regulatory organization.

4.2. Copyright and Unfair Competition principles efficient to regulate the use and exploitation of

advertising

The purpose of this paper was do determine if Copyright and Unfair Competition systems are effective,

efficient and suitable to regulate and resolve problems derived from the creation, use and distribution of

advertising in a complementary way to industrial property and Unfair Competition related to it. The former,

considering that advertising is a tool for undertakings to catch consumers and therefore, it has a

preponderant economic role. Nonetheless, this does not preclude the nature of many elements incorporated

to advertising campaigns as works protected under the Copyright system.

From the analysis made, we consider that the Copyright system is suitable for the regulation of the works

included in advertising up to some extent. Automatic protection and originality principles fully serve to

foment the advertising industry. The idea/expression dichotomy principle has been also useful in many ways

by establishing some specific rules52; however it is not efficient to prevent the appropriation of advertising

ideas. Furthermore, geographical delimitation of protection also produces uncertainty when advertising

campaigns are launched regionally or on the internet. Length of protection is also inconsistent with the

average duration of an advertising campaign and with the dynamism that characterizes this industry.

Additionally, economic rights in this field are generally useless, as the value of an advertisement and its

effectiveness increases when economic rights are infringed by users (consumers)53. Consequently, in order

to foment the advertising industry, it should be useful to review and maybe decrease the length of protection

to advertising works, as well as economic rights granted to right holders, especially when right holders are

not the advertising agencies, but the undertakings consuming advertising. Differences on the protection

                                                                                                                         51 GEOFFREY DRAUGHN, OLIVER GRAY, Advertising and Self Regulation, available at www.easa-alliance.org, access 23.02.2012. 52 For example, by establishing the impossibility to protect a manner of representing characteristics of products or services (a feather to represent lightness) when such manner is not original. 53 Nonetheless, in some cases, they may be useful to prevent misappropriation from competitors or even different undertakings that may take advantage of the creative efforts of others in producing an advertising campaign.

21    

provided in each jurisdiction may be a problem difficult to solve, as autonomy of each country is politically

and legally more important than fomenting the advertising industry.

With regard to Unfair Competition related to Copyright54, the efficiency of the system is intimate related to

the development of this area and the scope provided in each jurisdiction. As prevention of Unfair

Competition is compulsory only in relation to Industrial Property, this system has only proved its efficiency

in jurisdictions where legislation goes beyond the minimal obligation. In order this system may be an

efficient tool, it is necessary that all jurisdictions prevent Unfair Competition in relation to Copyright, as it

has proved to be an efficient tool to regulate the use and distribution of advertising. Furthermore, even when

WIPO recommended to not requiring a competition relationship between the parties, no legislation has

proved the efficiency of such recommendation in relation to the interface between Copyright and Unfair

Competition. However, it may be adequate such change, as it has been proved in jurisdictions where that

requirement is not necessary in relation to Industrial Property. We also consider appropriate to assess

unfairness of an act according to the place, the time and industry where it took place. This may represent

some uncertainty, but it allows fairness, as ethical standards are considerably variable depending on the

jurisdiction, time and industry. Furthermore, it is necessary that each Country develops its own standards of

fairness. Advertising Conduct codes are efficient to solve controversies between members of private bodies

that create them. However, in order to make the whole system more efficient, it is necessary that fair uses

can be demanded to everybody (not only members of private auto-regulatory bodies). To achieve this, it is

necessary to prevent Unfair Competition in relation to Copyright, independently that such private resolutions

can still be used when both parties are members of the auto-regulation entity.

                                                                                                                         54 Unfair Competition in relation to Industrial Property has proved to be useful to stop any unlawful conduct related mainly to trademarks and goodwill of undertakings. This area is considerably developed in international Treaties (Paris Convention), doctrine and case-law. Unfair Competition in relation to Copyright exists only in some jurisdictions, where it is generally used to provide with further protection to right holders in order to keep the market balanced.

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5. CONCLUSIONS

This paper presents a comparative study of the interface between Copyright and Unfair competition systems

in regulating advertisement. From the research and analyses we made we can conclude that none of the

studied systems are enough by themselves to regulate the creation, use and distribution of advertisement.

However, in jurisdictions where they are complementary to each other, they proved to be efficient. In any

case, up to now, there is no international agreement regulating the interface between the two mentioned

systems. We saw that in some of the jurisdictions analyzed (US, France and Czech Republic) it was

voluntary developed a relatively efficient manner to regulate such interface, however not all jurisdictions

include similar regulation. Although it is not evident a correlating negative effect between discrepancies

among jurisdiction and the production of new advertisement works, such inconsistencies may negatively

influence the efficient and balanced functioning of the market. Therefore, in order to provide with fair and

efficient protection of undertakings in advertising industry and to ensure the efficient operation of a market

in this sector, such inconsistencies should be eliminated to the possible extent. This may be done by

standardizing, to the possible extent, the concept of fair practices through conduct codes developed by the

private sector, including self regulatory bodies.

We consider that despite the particular characteristics of the advertising field, there is no need to develop a

sui generis system yet, as it may even be inefficient due to the dynamism of this industry. Nonetheless, we

consider that a minimalistic international harmonization would be useful considering that many advertising

campaigns are launched internationally. Such system should have as characteristics the following:

(i) The core principles and rights from the Copyright system applied to creations in the advertising

industry should remain. However, countries should consider providing with necessary

modifications in order such system is consistent with the specific character of advertisement

works. These modifications should mainly refer to the decrease of protection in the length of

protection of works and the economic rights, especially in relation to the right of distribution,

including the distribution on the Internet.

23    

(ii) Unfair Competition should be assessed autonomously by authorities in each jurisdiction.

However, the obligation to extend the protection against Unfair Competition in relation to

Copyright should be mandatory included within the legal framework of each jurisdiction.

(iii) It would be important to evaluate the possibility of broad the scope of Unfair Competition

provisions to acts performed by not competing entities. This conditioned to the existence of a

dysfunction in the market produced by a dishonest practice.

(iv) It should be considered to provide a more important role to self regulatory bodies in determining

the scope of fair and unfair practices. This, as consequence of: (i) the dynamism of the field; (ii)

the need to establish what an honest practice is in each jurisdiction and; (iii) the expertise of self

regulatory bodies in resolving problems not attended by the law. In the same way, it should be

advisable to review and consider taking some principles from Advertising Conduct Codes as the

one from the Italian Institute for Auto-discipline in Advertising. This, because it includes some

principles from the trademark’s system and some others from the Copyright field; furthermore, it

have served to prevent Unfair Competition acts in relation to advertising when controversies

arose between members. Advertising Code from the International Chamber of Commerce should

also be considered, as it is designed to be suitable for any kind of system and it already have

served as basis for many other ethic codes in this field.

In a nutshell, in order to diminish or even eliminate the most relevant loopholes in the field, we consider

necessary to look forward a basic harmonization on the already mentioned principles and to allow self-

regulatory bodies to have a higher implication in determining what is fair. This may help to increase the

already developed productiveness of this industry. That would result in a more efficient market, which

would be beneficial to all of its participants (undertakings and consumers).

24    

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1. Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments – Results of the Uruguay Round, 33 I.L.M. 1125, 1197 (1994), in http://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm

2. Berne Convention, Paris revision (1971), in

http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html

3. WIPO Copyright Treaty, adopted in Geneva (1996), in http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html

NATIONAL LEGISLATION

1. Law 633 of 1941 for the Protection of Copyright and Neighboring Rights (Legge 633 di 1941- Protezione del diritto d'autore e di altri diritti connessi al suo esercizio) – Italy, April 22nd, 1941; as amended on July 1st, 2010 in http://www.siae.it/documents/BG_normativa_leggedirittoautore.pdf

2. Industrial Property Law (Ley de la Propiedad Industrial) – México, June 27th, 1991; as amended on

January 27th, 2012 in http://www.diputados.gob.mx/LeyesBiblio/

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CASES:

1. Instituto dell’Autodisciplina Pubblicitaria. May 14th, 2010, Case (Pronuncia) N. 122/09 Luigi Lavazza S.p.A. v Nespresso Italiana S.p.A. and Nestle Italiana S.p.A.

2. Commission of Arbitration, November 1st, 2011, Decision of the 042/2011/STÍŽ, KGB v Telefonica

O2. WEBSITES

1. http://www.wilhelmassocies.com/La-protection-des-idees-publicitaires-article-paru-dans-la-revue-Legipresse-n-248-janvier-fevrier-2008-par-Pascal_a136.html, access 16. 09. 2011

2. http://www.advertising-for-small-businesses.com/advertising-definition.html, acces 19. 11. 2011

3. http://www.conar.org.mx/, access 01.12.11

4. http://www.iap.it/, access 01.12.11

5. http://www.leagle.com/xmlResult.aspx?xmldoc=1953779114FSupp665_1628.xml&docbase=CSLW

AR1-1950-1985, access 1. 12. 2011

6. US Supreme Court, case Heuer v Parkhill 114 F. Supp. 665 (W.D. Ark. 1953), available at http://www.leagle.com/xmlResult.aspx?xmldoc=1953779114FSupp665_1628.xml&docbase=CSLWAR1-1950-1985, access 1. 12. 2011

7. Business Dictionary, available at http://www.businessdictionary.com/, access 2. 12. 2011.

8. http://www.rpr.cz/cz/index.php, access 30.01.2012