Proctor & Gamble attempted to obtain a trademark for“Ace Al-Economika”
Recket Benckiser, the manufacturers of Kalia laundry detergent had a mark for “Kalia al economika”which means “bleach free Kalia”. They had also tried to trademark the phrase “al economika”, with the mark originally being allowed but subsequently, Ms. Nurit Maoz, the Head of the Trademark Department at the Israel Patent Office wrote to them to tell them that the allowance was a mistake and to cancel the mark, subject to appeal.
Recket Benckiser opposed Proctor & Gamble’s application and appealed the decision not to alow the word mark. P&G opposed their usage of the phrase.
Now the term “al ekonomika” is apparently a coinage of Recket Benckiser but is considered descriptive, and although the manufacturers of Kalia may have been the first to use the adjective, by its nature, the prefix ‘al’ implies without, as in “al chuti” – cordless, “al sabon” – soapfree and “al kamat” – creaseproof (synthetic material).
Now descriptive marks are generic and thus non-registerable, but arguably although very many things, including chocolate, soup powder, children’s toys and mobile phones and soft-drinks are bleach free, by drawing attention to this fact, surely by virtue of the creativity, the term should be protectable. (Actually, slogans are not generally protectable in Israel either).
Why didn’t they keep the improved formulation without bleach a trade-secret, or patent it? Well apparently, laundry powder NEVER contains bleach and advertising the powder as bleach-free was merely a sales gimmick.
The fact that no laundry powder contains bleach and so all are bleach-free was considered irrelevant. nevertheless, since apparently the gullible Israeli public thought that bleach free laundry detergent was something good, P&G wished to use the phrase an adjective in part of a name and to obtain a trademark for so doing.
So why should P&G deserve a mark? Well apparently the term Al Ekonomika means more than simply bleach free, and implies bleachless-but-having-the-desirable-characteristics-of-bleach-without-the nasty-side-effects-which explain-why-laundry-detergents-never-contain-bleach-anyway. now that’s an awful lot of explanation for one two little monosyllable prefix al to mean. How does it work? well, there are other negatives like bli, and l’lo (un, free, without); al has Biblical negatives that mean much more. The term is used in the Akedah, the Binding of Isaac – “put not thy hand on the boy”. See what I mean?
The two letter negative disclaimer resonates with the pain and anguish of 3500 years of Jewish History!
the problem is that “al sabon” means soap-free in a soap-free soap fashion, and is applied to soapless detergents for washing the face, i.e. having a pH of close to neutral, and not based on sabonification, but still effective.
So both sides brought along their linguists and philologists to show how the term meant more or less than XXXless.
The Commissioner of Patents ruled that regardless of who used the term first, since it is an adjective it is public domain and despite the fact that Recket Benckiser had a long period of being the only users of the phrase they had coined, it was still generic.
Citing decisions for other coined terms that are immediately understood, such as oven-chips, in the ruling, the word mark for the term remains cancelled and both parties were allowed to use the term as part of their marks with a disclaimer.
I believe that Dr. Noam is correct in this decision, which is well argued and thorough. Nevertheless, I humbly suggest that Recket Benckiser should consider suing for copyright infringement against other manufacturers. Copyright is litigated at the district court level and appealed to the Supreme Court. Since there are no specialist IP courts in Israel and since Israel’s judges are not generally familiar with IP Law and have been known to make rediculous rulings, it is not inconceivable that the first user of a phrase could get rights for 70 years or so…
What is not clear however, is where the term ekonomika comes from. It is not Biblical and seems to imply economical or something. Someone must have coined that word, and since Modern Hebrew is only a spoken language for less than a century, perhaps the term belongs to someone.