In Rolex SA v Balloons and Entertainment Ltd (Case 2573/04, December 17 2008), the Tel Aviv District Court refused to award damages to Rolex SA against an Israeli importer of counterfeit Rolex watches, accepting that the shipment of watches was the result of an error from the Chinese supplier.
In accordance with standard practice, Israel Customs seized a shipment of 750 fake Rolex watches of the classic ‘Oyster Perpetual Date model. Rolex sued the designated recipient, seeking a permanent injunction and damages for trademark infringement, passing off, injury to goodwill and unjust enrichment.
The importer claimed that the shipment was the result of an error by its Chinese supplier and that it had agreed to the destruction of the seized goods upon being notified by Customs.
There was no dispute that the counterfeit goods infringed Rolex’s trademarks and that the burden of proof rested on the importer. However, the court held that the latter had discharged its burden of proof by providing an affidavit from the manager of the Chinese supplier stating that the importer had ordered unbranded goods and that the shipment was made in error. The court thus rejected Rolex’s claim for damages.
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