Trademark for Kappa Cigarette Brand Opposed

February 26, 2015

Kappa

Karelia Tobacco Company Inc filed Israel trademark application 213924 for the word Kappa (non-stylized). The mark covers cigarettes, tobacco and tobacco products, lighters, matches and smoker’s requirements, all in class 34. The application was filed in August 2006, and was accepted in March 2010 and published for opposition purposes. Basic Trademarks S.A. opposed the application. Basic Trademarks S.A. has a brand of sports clothing Kappa – with the logo shown above.

Among other grounds, Basic Trademarks attempted to amend their statement of case to oppose the registration on the Section 7a(d) of the Law to Limit Advertising and marketing of tobacco products. This attempt was thrown out based on a ruling that limiting cigarette advertising was not grounds for preventing a trademark from being registered. Furthermore, tobacco brands could not fairly be considered unregisterable under grounds of Public Order.

Kappa appealed this interim ruling to the District Court (Appeal 15171-02-11) who ruled that public order was a consideration. The statement of case was then amended. The sides submitted their evidence, but forgo the need for a hearing, allowing the Israel Patent and Trademark Office to rule on the Opposition based on the written evidence and submissions.

Opposer’s Case

The Opposer argued that they were a world leading clothing company that made shoes, clothing and head-wear for leisure wear, sports, and for sporty fashion. The mark was well known in the US, Europe, Canada, China and Israel.

The Opposer has 13 marks including the name Kappa in various classes, with and without the logo shown above, where the word Kappa is dominant. The Opposer claims to have invested significant resources in advertising and marketing, worldwide including Israel. The turnover reaches millions of Euros a year. The company promotes sports and international sports competitions.

Due to the advertising, Kappa is a well known mark, as the term is defined in Section 1 of the Ordinance, and thus under Section 11(14) the mark cannot be registered by others in other classes as this would create a linkage to the clothing manufacturer which would damage their reputation.

The mark was also not registerable under Section 11(6) as to register it would dilute the sports company’s mark, damage their reputation and be unfair competition.

Furthermore, following the appeal, the application should be refused under Section 11(5) as being against the public good – Section 7a(d) of the Law to limit advertising and marketing of tobacco products was legislated since tobacco is unhealthy. Finally, the applicant had not actually sold tobacco products under the Kappa brand and so would not suffer significant losses from having the mark refused.

Applicant’s case

Karelia Tobacco Company Inc argued that Kappa is famous only for the word together with the back to back male and female and the word itself is not well known.

Trademarks and branding for cigarettes is allowed in Israel and so public order considerations should be considered irrelevant. The word Kappa is similar, but there is no conceptual relationship between the goods. (What the argument is really saying is that since Kappa promotes a healthy sporty image and cigarettes don’t fit into that image, noone would think that Kappa cigarettes are a product of the sporty fashion company. Both marks are used with other elements and the possibility of damage to Kappa sportswear from Kappa cigarettes is not proven.

The distribution channels and customer base is very different. Kappa is a Greek letter and like Delta, although can be monopolized, cannot be monopolized across classes. For example, the word Kappa is in use by third parties in the print industry.

Both in Israel and abroad the same mark may be used for cigarettes and for sports goods with both marks coexisting. (This argument is plausible, however, no examples are given).

In conclusion, applicant rejects claims of confusion, unfair competition and dilution, and argued that Kappa had not proven that their mark is well known in the meaning of the term as far as well known marks is concerned. Furthermore, the advertising limitations on cigarettes cannot be applied to prevent the mark from registering.

Kappa submitted evidence of turnover and advertising expenditures and a Wikipedia excerpt concerning fashion cigarettes.    It seems that Yves Saint Laurent, Givenchy, Versace, Pierre Cardin, Christian Lacroix and Cartier have, at one time, each allowed their name to be linked to cigarettes. It was argued that sine fashion brands do allow their names to be used with designer perfumes and cigarettes, a cigarette with the same name as a fashion brand could be considered as linked to the fashion brand, creating a confusion regarding origin.

The Ruling

Citing precedents, the Adjudicator Ms Shoshani Caspi ruled that in oppositions, the burden of proof lies with the Applicant. Nevertheless, the Opposer has to base their opposition on facts.

The parties forgo a formal hearing with cross-examination and allowed the Adjudicator to rule on the evidence submitted.

Firstly, Ms Shoshani Caspi examined whether Kappa could fairly be considered a well known mark for fashion at the time that Kappa was filed for cigarettes, allowing it to prevent marks from being registered in additional classes, i.e. not just for fashion accessories.

The determination of whether Kappa could be considered a well-known mark was based on market penetration in the relevant population sector, the extent of usage of the mark and its longevity, long term advertising, inherent distinctiveness, whether the mark was in exclusive use and to what extent the owners of the mark invest in combatting infringers. The mark had to be considered well-known in Israel and not just abroad.

Al the evidence pointed to the mark being well known, despite the fact that generally the name Kappa is generally used together with the logo. The mark has been in use since 1969 and is mostly used in connection with sporty clothing. The opposers have an international portfolio of 600 marks including the word Kappa alone, not just as part of Robe De Kappa or together with the emblem. They have sponsored various football teams in Italy, Holland, France and Spain. The brand has millions of dollars of annual income from sales in Israel and has sponsored various local football teams including HaPoel Tel Aviv and Betar Jerusalem.  Thus the KAPPA mark was well-known in Israel as well.

The second issue is whether, due to the phenomenon of fashion cigarettes, whether the public would identify KAPPA cigarettes with the fashion brand. Here, when extending a mark into new categories of goods, there is a need to act sensitively and to weigh up the interests of the competing parties.

Ms Shoshani Caspi was impressed that both fashion and cigarette usage are susceptible to trends and found the phenomenon of fashion cigarette branding persuasive.

The fact that the cigarette brand had not yet launched strengthened this, and she was also convinced that a brand associated with the fashion house could do harm to the fashion house’ image.

Since the fashion house had a sixty year history and the cigarette company could not provide any reasonable explanation for the choice of name, she suspected inequitable behavior and considered dilution a real possibiliity.

In conclusion, MS Shoshani Caspi ruled that the Kappa fashion mark was well known, that fashion and cigarettes could confuse confusion and dilution and rejected registration of the Kappa brand for cigarettes and rejected the registrations under Section 11(14 and 11(6).

Ruling re Opposition to by Kappa clothing to Kappa as Israel Trademark 213924 “Kappa” for cigarettes, Ms Shoshani Caspi, 22 January 2015

 

COMMENT

The fashion brand argument ignores the fact that haute-couture and sports goods are not the same, and that fashion cigarettes are a relic of a bygone era when smoking was certainly socially acceptable, but more was actually considered cool and sophisticated, and not just among teenagers. Put another way, when cigarettes were fashion accessories, fashion houses were happy to have their names associated with cigarette brands. That is not the case now, as evidenced by Kappa’s arguments. That said, the decision seems reasonable.

 


Over 400 Followers!

February 25, 2015

400

We are delighted to note that we now have over 400 followers who receive emails each time we make a blog post.

We have over 100 visits most days and over 2750 opening our monthly newsletters.

We thank you all for your support.

 


Clip Fresh Ruling Upheld On Appeal

February 25, 2015

clip-fresh

Back in July 2014, the Israel Patent Office allowed the Clip Fresh logo mark of Farm Chalk LTD to be registered despite an opposition from earlier registered ‘Click and Fresh’ to Millennium Marketing Intertrade (1999). The Examiner considered the likelihood of confusion to be unproven. See here for more details.

Millennium Marketing Intertrade (1999) appealed the decision and the decision regarding costs (reduced from 92,932 Shekels to 80,000 Shekels) to the Tel Aviv District Court under the Right to Appeal.

They considered that despite the different appearance of the marks, when the sound of the mark is considered, there is a likelihood of confusion.

Furthermore, “By Farm Chalk” –which appears in the mark, was never actually used, rather the mark holder used the slogan “Keep it Fresh”, so the decision to allow the registration on the grounds that the words By Farm Chalk prevented confusion should be reversed.

.The Appellant argued that the F of Fresh looks like an ampersand (&) and the mark holder simply adapted their mark and was confusingly similar in appearance. Furthermore, the costs of 80,000 Shekels were disproportionate to the work involved in the opposition.

The mark holder argued that the Appeal should have been filed within 45 days and was actually filed 4 months after it issued and so should be thrown out. Furthermore, the Click and Fresh mark only issued after disclaiming the descriptive words ‘click’ and ‘fresh’ and so cannot be considered misleading the public as to the source of the goods. The costs were not much different from costs awarded in other cases and Appeals to reduce costs should only be accepted in extreme circumstances.

The appeal was filed within 45 days of the costs ruling though not within 45 days of the main ruling. Judge Yehudit Shnitzer considered that the costs of 80,000 Shekels were indeed significant and could be grounds for deciding to file an appeal. She therefore was prepared to review the case and rule on its merits.

As to the phonetic similarity, Judge Shnitzer considered that food containers are not bought by requesting the goods by brand over the counter, but by picking up and examining the goods. She therefore considered that the difference in visual aspects of the marks outweighed the similarities in sound.

Neither mark would have issued for the words, only for the stylized logo. In an appeal regarding the registration of a mark there was no room to consider whether the mark was actually used as registered, since this was a separate ground for canceling a mark after a period of time, but not within the scope of the appeal. Since the click and fresh registration only issued by disclaiming the words ‘click’ and ‘fresh’, the protection afforded by the sounds of these words is very limited.

The marks have to be considered in their entirety, with the emphasis on the visual aspects not the audible ones, and noting similarities in disclaimed words, but not giving such disclaimed words much weight.

As there are a lot of similar goods on the market, someone interested in a specific brand would be expected to take care.

It is important to prevent trademark abuse and policy dictates having to avoid trademarks providing an effective monopoly on goods having certain characteristics, rather than serving as an indication of source. Allegations of free riding, unfair competition and confusing the public were rejected in favour of free competition.

As to the costs awarded, Judge Shitzer noted that the costs were based on actual cost submissions and were calculated and not random. She accepted that there were cases with a single hearing and no witnesses from abroad where the costs awarded were much lower. She did not, however, consider the costs to be outrageous and did not see fit to interfere.

After ruling to reject the Appeal, Judge Shitzer awarded a further 30,000 Shekels costs against Millenium Marketing Intertrade (1999).

Appeal to Tel Aviv District Court 27992-08-14 Millenium Marketing Intertrade 1999 vs. Farm Chalk Investment LTD. Concerning Israel trademark opposition ruling concerning Farm Chalk’s stylized graphic mark by Asa Kling, the appeal ruling by Judge Shnitzer, February 2015    

COMMENT

This decision vindicating the Commissioner’s ruling is correct. I think that the decision also shows that Ms Yaara Shoshani-Caspi’s ruling re Humus B’Ribua is wrong.


Cost ruling re Brands’ Bosco Brand

February 23, 2015

Brands Environment Establishment filed trademark applications 239210 and 240584.

Bosco

TM 239210 is for the logo BOSCO as shown above, which covers Furniture, mirrors, picture frames, goods (not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics specifically excluding industrial furniture such as modular work place units, including work tables, workbenches and work seats in class 20, For Meat, fish, poultry and game; meat extracts; preserved, frozen, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs, milk and milk products; edible oils and fats in class 29, for Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, bread, pastry and confectionery, ices; honey, treacle; yeast, baking-powder; salt, mustard; vinegar, sauces (condiments); spices; ice in class 30 and for Architectural and design services, services linked to interior design in class 42. As originally filed, the mark  also covered goods in classes 9 and 12.

TM 240584 is for the word mark Bosco and covers Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices in class 3, Precious metals and their alloys and goods in precious metals or coated therewith, not included in other classes; jewellery, precious stones; horological and chronometric instruments in class 14, Leather and imitations of leather, and goods made of these materials and not included in other classes; animal skins, hides; trunks and travelling bags; umbrellas, parasols and walking sticks; whips, harness and saddlery in class 18, Furniture, mirrors, picture frames, goods (not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics specifically excluding industrial furniture such as modular work place units, including work tables, workbenches and work seats in class 20, Clothing, footwear, headgear in Class: 25, Games and playthings; gymnastic and sporting articles not included in other classes, decorations for Christmas trees specifically excluding toys that resemble power tools or kitchen appliances in class 28, Meat, fish, poultry and game; meat extracts; preserved, frozen, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs, milk and milk products; edible oils and fats in class 29, Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, bread, pastry and confectionery, ices; honey, treacle; yeast, baking-powder; salt, mustard; vinegar, sauces (condiments); spices; ice in class 30, Advertising; organisation of exhibitions for commercial purposes; business management of sales outlets; business consultancy relating to franchising; retailing of cosmetics, perfumery, spectacles, watches, jewellery, stationery items, furniture, chinaware and tableware, leatherwear, bags, handbags, suitcases, trunks and travelling bags, textiles and textile goods, bed and table covers, clothing footwear and headgear, gymnastic and sporting articles in class 35, Education; providing of training; entertainment; sporting and cultural activities in class 41, and Services for providing food and drink; temporary accommodation in class 43.

As originally filed, this mark covered classes 9 (Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments; apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs; compact discs, DVDs and other digital recording media; mechanisms for coin-operated apparatus; cash registers, calculating machines, data processing equipment, computers; computer software; fire-extinguishing apparatus), class 12 (motors and engines for land vehicles; couplings and transmission components for land vehicles; and air cushion vehicles) and class 42 (services provided by persons, individually or collectively, in relation to the theoretical and practical aspects of complex fields of activities; such services are provided by members of professions such as chemists, physicists, engineers, computer programmers, etc.).

The trademark applications were filed through the Madrid Protocol where, among other countries, Israel was specified . In response to Robert Bosch LTD filed a detailed opposition to the registrations in classes 9, 12 and 42. The Applicant did not file a counter-statement.

Consequently, according to a ruling published on 12 January 2015, these marks were considered successfully opposed in classes 9, 12 and 42 by Robert Bosch LTD and the registrations were amended accordingly. Robert Bosch then requested costs of 3208 Shekels in fees and 2200 Euros in lawyer’s fees.

Ms Shoshani Caspi  ruled that in general, the losing party should bear costs. In this case, however, the request for costs was not sufficiently detailed for the adjudicator to decide that they were reasonable, justified and proportional. The case was closed early on after the Opposers filed their detailed statement of case but did not have to respond to arguments.  Then again, the applicant failed to note that the applications were being abandoned. In conclusion, Ms Shoshani Caspi ruled fees + 4000 Shekels.

COMMENTS

Presumably, Bosch’s representatives informed them of the Bosco marks, received instructions to oppose, filed two oppositions with detailed statement of cases, monitored for responses, reported the successful opposition and requested costs.  Even if the request for costs was insufficiently detailed, I don’t think that 4000 Shekels costs is very much for this amount of work.


A Perfectly Ridiculous Trademark Registration

February 22, 2015

Perfect

Danny Lipaz filed Israel Trademark Application No. 246231 for the ever so slightly stylized word mark “Perfect”. The application covers clothing, footwear, headgear, T-shirt, sweatshirt, underwear, sweatpants all in class 25.

Perfect Shoes LTD opposed the registration.

The parties came to a agreement regarding the types of goods and geographical distribution of usage and asked the Israel Patent and Trademark Office to ratify the decision.

Ms Shoshani Caspi felt that the agreement was in personam and thus its details were not appropriate for the Israel Patent and Trademark Office to relate to, since the Israel Patent and Trademark Office maintains an in rem register.

Since the mark was allowed but the Opposition was not considered at all, there was no legal or logical basis to rule on any limitations. Cnsequently Ms Shoshani Caspi refused to endorse the agreement and gave the parties 14 days to decide on how they wished to proceed, with the default being submission of evidence.

COMMENT

Here I think Ms Shoshani Caspi is correct to require the opposition proceeding to continue, but I can’t see how the word perfect can be registered as a trademark since it is laudatory.


Humus Squared!

February 22, 2015

humus b'ribua

Humus b’Ribua, (literally Humus squared, or Humus in a square) filed Israel trademark no. 250521 on 28 October 2012 for catering services.

The mark is shown above. For those not familiar with Hebrew, the mark consists of the words Humus b’Ribua, (literally Humus squared, or Humus in a square) followed by, in smaller letters, to wipe the corners, the whole written over a square background.

On 17 March 2013, a company called Humus b’Ribua LTD, (literally Humus squared, or Humus in a square) opposed the mark. Humus b’Ribua filed their counter-statement of case. Both sides filed evidence and a hearing was held before the Adjudicator, Ms Yaara Shoshani Caspi.

 

The owner of the Humus B’Ribua mark, Mr Pivnik, claimed to be familiar with the legal issues and chose to handle this without legal representation.

The mark Humus B’Ribua is intended to be a franchised chain of restaurants.

The Opposer, Guy Yakar, owns a chain of felafel outlets, Felafel b’ribua that sells Israel fast food, including falafel and humus. The chain was set up in 1995 and sells square felafel balls cubes through 10 outlets. The Felafel b’ribua logo (TM 150166) is shown below.

Felafel B'ribua

In addition, on filing the opposition, Guy Yakar and Felafel b’ribua submitted a further trademark application (TM 254346) as follows:

felafel b'ribua 2

In addition to mentioning Felafel b’ribua, the mark includes the Hebrew words for “manufactured from Humus since 1995″.

For those not familiar with these Middle Eastern fast foods, Humus is the Arabic and Hebrew word for chickpeas. Humus is served as a paste made from boiled and then mashed chickpeas. It is often flavoured with Tehini, which is a paste made from sesame seeds. Felafel are chickpea cutlets, balls (or apparently cubes) of course chickpea paste that may also include breadcrumbs, and are deep fried.

Felafel B’ribua claimed confusingly similar marks.

They claimed that they are a successful chain of fast food outlets whose main products are hummus paste and falafel, both made from hummus (chickpeas). They noted their established mark, which they asserted was in use from prior to registration in June 2001. They argued that their second mark, though filed in March 2014, was part of a branding and marketing campaign from 2011, and supported this with a write up from Idiot Achronot, invoices from a publicity agent and photos of signs and adverts. They claimed to spend hundreds of thousands of shekels a year on advertising. Felafel B’ribua further claimed that about 50% of their sales came from humus sold as humus paste (and not as falafel), however because of the confidential nature of the information, no evidence was submitted to back this claim. To support their claim of a likelihood of confusion, Felafel B’ribua produced two examples of actual customer confusion.

Humus b’ribua denied the similarity. Mr Pivnik claimed to have set up his chain of humus outlets in 2011, where humus is vended in an original shape that he’s conceived. His product is humus on a square plate and he’s never intended selling square falafel or to pass himself off as Felafel b’ribua.

He further claimed to have spent a lot of time and money in developing his recipe and marketing the brand. Finally, he noted changes made to the logo to differentiate toastnik b’ribua, now issued as TM 252402.

The Ruling

The Opposition is based on Sections 11(6), 11(9) and 11(13) of the Trademark Ordinance.

Claims of dilution unfair competition and of the mark being a well known mark were dropped, so the ruling depends on the whether the marks are confusingly similar or not.

Section 11(9) states that identical marks for similar goods or for goods in similar classes, and for confusingly similar marks are not registerable.

The logic behind Section 11(9) is to protect the registered mark owner from losing customers due to confusion, and to prevent customer confusion.

The likelihood of confusion is determined by the triple test, where the first strand (sight and sound of the mark) is given more weight than the distribution channels, clientele and other considerations.

The word B’ribua is identical. Whether or not the words felafel and humus, and the additional phrases concerning wiping, etc. are sufficient to distinguish between the marks requires the other tests, i..e consideration of the distribution channels, clientele and other considerations.

Ms Shoshani Caspi accepts that the two foods are considered related local Middle Eastern fast food and that felafel contain humus. In addition, she was convinced that the requested mark would lead customers to consider that the two chains had a common owner with a common culinary consideration, since one sold square felafel and the other sold square plates of humus.

The customer pool for the two chains is substantially identical.

The terms humus and felafel are generic and descriptive and cannot therefore be used to differentiate between the two chains. The superscript 2 simply implies ‘squared’.

Ms Shoshani-Caspi considered that the average consumer with an imperfect memory would be likely to be confused. The catch phrase about wiping the corners, or made from humus would not serve as branding and are swallowed up in the overall design, as are differences in font.

The Felafel B’Ribua chain is well established and well publicized. Mr Pivrik apparently acknowledged that the opposer had thought up square felafel balls. Were the brand to be square falafel, it would be considered descriptive. Squared does not imply larger portions and is no laudatory.

In her ruling, Ms Shoshani Caspi ruled that the marks were indeed confusingly similar and so refused to allow the Humus b’ribua mark to be registered. She further awarded costs and 5000 Shekels in legal fees to Humus B’ribua.

 Re Israel TM 250521 “Humus b’ribua” to Pivnik, Opposition by Guy Yakar (owner of Felafel b’ribua) ruling by Ms Shoshani-Caspi, 6 January,  2015

COMMENT

squares that look round

squares that look round

I suspect that I am not the correct consumer to decide whether there is a likelihood of confusion as I am unlikely to be tempted by either chain, and see both foodstuffs as generic. Nevertheless, I think that marks should be considered in their totality, not analyzed as their parts. The word humus does not sound like felafel. Despite their common ingredients, the two words connote different products. I therefore don’t think that there is any likelihood of confusion.

If one chain called itself Felafel Meruba (Square Felafel) and a competitor chose the name  Felafel B’Ribua, there would be a case to answer for. The terms sound similar.  However, felafel does not sound like humus and these words are dominant in the company names.

Despite the Israel Supreme Court decision re Apropos (General Mill’s Bugles), I disagree that because Felafel Meruba (Square Felafel) is descriptive and thus can’t be trademarked since Felafel cubes are non-standard shaped.

There is a chain of bagel outlets called Holy Bagel. This is a play on words reflecting the fact that the chain is centered on Jerusalem and that bagels have a hole. I think that Hole Bagels, Whole Bagel and Holey Bagel are confusingly similar. Holy Felafel, Holy Pizza are not.

 

 

 

 


YES!

February 18, 2015
Yes!

Yes!

DBS Satellite Services 1988 LTD provides satellite television services in Israel that are branded as YES. The Service is licensed by the Communications Ministry.

DBS Satellite Services 1988 LTD sued the brothers Ahmed and Amar Hamuda for trademark and copyright infringement and damages, requesting the following sanctions:

  1. A permanent injunction against the defendants to prevent them from distributing, marketing of selling pirate transmission of the Plaintiff, to cease using the plaintiff’s trademarks, including in third party publications. They requested an injunction against them using the plaintiff’s equipment, or equipment supplied by the plaintiff to their customers, for any but personal use, and to cease any non-personal use immediately.
  2. An order to the defendants or to the receiver to destroy all equipment that enables copyright infringement and all material carrying the YES logo.
  3. An injunction to remove YES’ registered trademarks from the FACEBOOK page for Acre Satellites and from all other publications.
  4. A request to reveal accounts going back seven years.
  5. Statutory damages of 700,000 Shekels under Section 56a of the Copyright Act and Statutory Damages of 100,000 Shekels for trademark infringements (claiming single infringements merely to reduce the court fees) and double costs as a punishment for willful infringement.
  6. Alternatively, compensation of 1,900,000 Shekels for Unjust Enrichment,  (the figures capped to reduce the court fees).

These injunctions were granted by Judge Zernkin, and following the Anton Pillar injunction, equipment and computer records were seized and a summary report was filed to the court by the receiver.

The injunctions were kept in force until the end of proceedings, and for the purposes of the hearing, an order to produce documents and to fill out questionnaires was issued.  This happened in the presence of the defendants who then failed to respond. Consequently, using powers under Section 122 of the Civil Court Procedure 1984, the court ruled that the statement of defense be struck from the record. It is noted that the statement of defense was a mere denial without any explanations.

In a ruling of 27 December 2014, Judge Orit Weinstein requested that the Prosecution supply evidence to substantiate their case and on 15 January 2015 they submitted evidence and affidavits of private detectives, by the VP (Engineering) of YES and the Head of Development at YES.

Based of the evidence submitted, Judge Weinstein ruled that there was sufficient grounds for a judgment against the defendants:

The Defendants broke the security encryption of the satellite transmissions and created a pirate industry, marketing and selling YES’ transmissions piratically, without paying YES, and by undercutting YES’ prices, free-riding on YES. YES’ copyright was infringed by the packaging of the transmission channels and the content, and YES’ trademarks were infringed by being used without permission and illegally.

Consequently, Judge Weinstein ruled that the temporary injunctions would become permanent injunctions, that all equipment be destroyed, following the receiver declaring that he was not holding any assets, there was no need to issue an order against him. The FACEBOOK page should be amended and so should all other publications so as not to include the trademarks of the plaintiff. Judge Weinstein further ruled statutory damages of 700,000 Shekels for copyright infringement and of 100,000 Shekels for trademark infringement, 10,000 Shekels expenses and 40,000 Shekels legal costs.

Civil Proceedings 111147-10-13 DBS Satellite Services (1998) LTD vs. Ahmed and Amar Hamuda.

COMMENTS
I have no sympathy for the defendants in this case. Nevertheless, although the ruling seems very reasonable and the defendants didn’t exactly defend themselves, in the hands of a good lawyer, they could have raised a number of interesting questions. Free riding is not a crime. YES probably does not own very much of the copyright in their transmissions and creating a copyright in a package of channels is stretching things a little. In a recent Supreme Court Ruling concerning parallel imported Tommy Hilfiger shirts here, the Supreme Court allowed the parallel importer to advertise that it was selling Tommy Hilfiger shirts, but not to claim that it was a registered supplier, and to inform customers that they were not entitled to warranties from the official suppliers.  Can one really prevent someone from using the word ‘yes’ on their facebook page or in advertisements?

pirate

Piracy is the crime of boarding shipping on the high seas that is punishable under international maritime law by requiring the pirate to walk the plank.

Arguably with regular TV transmissions, there is a case for Ministry of Communications regulation to divide the radio frequencies into separate bands and to prevent channels interfering with each other. I am not sure that for digital signals sent by satellite this is the case. Certainly government tenders have been abused. The tender for commercial radio that then Govt. Minister Shulamit Aloni put together was designed to prevent Arutz 7 from obtaining a license. The same politicians who called the Arutz 7 team pirates and warned about pirate radios risking plane crashes lauded the late peace activist Abu Natan and his pirate radio ship the Voice of Peace and nominated him for a Nobel Prize. When the Supreme Court voted en banc against Arutz 7, without a dissenting voice even mentioning the value of free speech, it was clear that things have deteriorated a long way since Agranat’s deicison re Kol HaAm.


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