The IP Factor

On Thursday, a small group of IP enthusiasts gathered in Tel Aviv to participate in the launch of Dan Adin and Eran Liss’ new book. It was the first time I had participated in an academic book launch and wasn’t sure what to expect.

The program consisted of four lectures, one by Ms Robyn Lederman of Brooks Kushman on trademark changes in the US, one by Dr Amir Khoury, on what he considered to be the major issues in Israel IP, a lecture by Gerson Panitsch of Finnegan, on what to do if you get a Cease and Desist letter, and a presentation by Eran Liss on using competitor’s trademarks as paid Google ad words in Israel.

The turn-out seemed to me, to be disappointing – with maybe 40 people present. I don’t know who was invited, but received separate invites from Amir, Gerson and Eran, and had never met Robyn before. The audience included lawyers, patent attorneys, trainees and IP managers in industry, so assume that organizers had made a fair attempt to invite the profession and most practitioners received at least one invitation. So why was the turn-out so poor?

Noticeable for his presence, that was highlighted by the absence of other leading IP litigators, was David Gilat, the chief litigator of Gilat Bareket, of the Reinhold Cohen Group. I suspect that many of the absent litigators decided to ignore the book launch out of professional jealousy or envy of Adin and Liss. But doesn’t Adv. David Gilat also feel threatened by these up and coming court room attorneys of the next generation? Perhaps he simply realizes that litigation requires counsel on both sides and the book is a contribution to the profession. Who knows? I was pleased to see him as I think it is fitting for a representative of Israel’s largest IP firm to patronize an event celebrating publication of an important professional book.

Of course the absence of other litigators could simply reflect the fact that the timing of the program, at 5 to 8 PM on a Thursday night in mid July, was not the best choice.

My personal suspicion is that the program, with four speakers, was simply too heavy. If anyone ever asks me to help them organize a book launch (or if I ever write a book and launch it myself), I think I’d advise one entertaining and informative speaker, and lots of mingling over cheese & wine or similar, with live music in the background. I’d look for a complimentary presentation, such as one by AKUM on royalties and cover versions of songs. Maybe my thinking that an academic book launch should be a party is indicative of my being less of an intellectual than I previously supposed. I suspect that the attempt to have something intellectually stimulating for patent attorneys, something for trademark litigators, something for IP managers and something for academics, simply made the program a little heavy, particularly for a hot and sultry July evening.

Robyn Lederman spoke about the need to use a trademark in the US, and not to be too aggressive in listing long lists of goods and discussed recent inititiatives to tidy up the US trademark register. Dr Amir Khoury listed the main issues in IP as he saw them, and briefly commented on half a dozen of them. Amir is a competent and experienced lecturer and comes over as such. however, he seemed to cram in too much for the time available. As usual, I found myself agreeing with some of his points and disagreeing with others. What was disconcerting was that there were some ideas that he raised, that I didn’t have time to decide whether I agreed or not before he’d changed the subject completely. He made a double entendre about Teva which I caught, but most of the audience missed, and so he repeated the joke. I suspect that the audience as a whole were simply too tired to follow his bright academic intellect through the various alleys and cul-de-sacs he navigated through with GPS enabled ease.

Gerson Panitsch’ presentation was much lighter. His main point was that if you get a Cease & Desist, instead of talking money and trying to resolve issues quickly, one should respond with requests for clarification, drag things out and maybe the problem will go away.  Some Cease & Desists are genuine litigation threats. Others, are simply attempts to force a licensing deal. One cannot ignore such letters, but maybe they are less serious than they first appear.  There was a subliminal message to his talk, that if one received such a letter, one should engage competent US counsel, such as Gerson Panitsh of Finnegan. Engaging a big US firm to represent you in US infringement proceedings does, however, seem to be a fairly reasonable strategy, and he did give the impression that sometimes cases can be dealt with without actually needing to go to court.

Eran Liss tried to reconcile conflicting rulings concerning using competitors trademarks, and showed that the Israel Courts do not follow precedent as they should, nevertheless, with some mental gymnastics, one can perhaps reconcile the differences. His thesis seemed to be that if using someone elses name for competitive advantage was not allowed in TV advertising, but using someone else’s name as a keyword for internet searching was allowed, this was a ridiculous state of affairs since internet advertising was becoming the dominant form of promotion.

The underlying assumption of Liss’ position was that trademarks are a form of property. However, if one takes a more conservative position that they are not property per se. but merely an indication of the origin of goods, much of his criticism of the Matim Li case disappears. In general, the Adin Liss book starts from a pro-Barak position but notes that application of the three strand trademark test to specific cases tends to be somewhat unpredictable and the identity of the judge seems to be the most important variable in affecting the judgement. I would expand this insight to IP law in general, with certain judges being strongly pro-plaintiff and certain judges viewing access to films and music over the internet as being a type of human right. I am rarely surprised when the case-law is contradictory and judges fail to follow precedence. Nevertheless, I found Eran Liss’ attempt to reconcile the different decisions rather enjoyable.  He would be surprised that the adjective that came to mind was Talmudic.

Those that attended left with food for thought. The pastries weren’t bad either.

Both Eran and Dan were suits and ties, which seemed reasonable for authors launching a formal book. When hosting IP conferences and seminars in the past, I’ve also dressed formally. Still, the airconditioning was working…