The IP Factor

the Jerusalem District Court has granted an injunction preventing the defendants from using marketing material from Dead Sea Laboratory’s catalogue and website on their own websites on the grounds of copyright infringement.

 Dead Sea Laboratories is an Israeli company which manufactures and distributes cosmetics made from Dead Sea minerals and other natural ingredients under the trademark Ahava (love). The defendants, JWG, sold the products over the Internet despite not being authorized distributors of Ahava products. Furthermore, the defendants uploaded pictures and text taken from Dead Sea Lab’s website and catalogues to their site.

The defendants argued an implied authorization to use the Dead Sea Laboratories copyright marketing material to sell the Ahava product line on the parallel market, which is allowed under Israel Trademark Law. They further argued that Dead Sea’s attempts to enforce its copyright in this manner was against public policy. The defendants went on to claim that Dead Sea Laboratories could not circumvent the

lack of grounds to sue for trademark infringement by filing a copyright infringement claim. Finally they argued that the principle of trademark exhaustion entitled them to use Dead Sea’s marketing material.

In its ruling, the court distinguished the right to trade in goods on the parallel market and the use of copyrighted works that are not part of the products themselves. The court rejected the claim that online shops are like real world retail outlets where original catalogues can be presented to customers, since using marketing material on the Internet involved an act of copying. The court also held that the textual description of products is in fully copyright protectable, or at least the parts of description that are more than simply list of ingredients, or similar factual presentation. The court thus held that a description that includes non-essential details would be protectable. Applying this principle to the descriptions of the Ahava product line, the court found that these were geenrally protectable, there was at least a modicum of creativity.

While noting that copyright legislation does not entitle trademark owners to prevent parallel importation of trademarked goods or to forbid vendors from using trademarks in cases where the doctrine of exhaustion of trademark rights apply, in the case at hand the issue was unauthorized use of copyrighted material and was thus forbidden.

See  Jer. Case 8152/06 Dead Sea Laboratories Ltd v JWG Ltd, January 26 2009.

This entry was posted on Thursday, March 5th, 2009 at 10:24 am and is filed under Copyright, infringement, Intellectual Property, Israel, Israel Copyright, Israel Court Ruling, Israel IP, Israel Trademark, News. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.