Another Poor Israel Trademark Ruling; this time for Health Bread

In Israel, bread and milk prices are regulated. Lehem Ahid (standard bread) is available from white and dark (off-white? flour), either sliced or non-sliced. It costs the same, no matter who makes it.

Other types of bread, including pita, rolls, challah, rye bread, whole-meal, Russian, etc., are available from different bakeries, each selling under a descriptive name or occasionally as a brand, with a registered trademark.

One such trademarked bread name is Eynan; a wholemeal bread, the flour used therein being made from germinated but non-sprouted wheat. This bread has been made for 20 years by Angel’s, the largest bakery in Jerusalem, and indeed, in the entire Middle East. Eynan is sold in 750 gram pre-sliced loaves, in distinctive yellow striped bags labeled Lehem Eynan. In time, Lehem Eynan has cornered over 50% of the health bread market.

Berman, another large Jerusalem bakery has started selling Lehem l’Inyan, or Berman l’Inyan; the word l’inyan is probably best translated ‘serious’ or ‘down to earth’. Just in case, the similarity of the name might be considered coincidental, we note that they use a similarly striped bag, sell in similar sizes and use the same by-line, that the bread is made from germinated but non-sprouted grain.

Judge Pilpel (meaning pepper, and not indicative of her hot, spicy ability) has, in a learned and erudite, but in my opinion, essentially wrong decision, ruled that there is no passing off, no unjust enrichment and no likelihood of confusion.

Amongst noticeable differences is the fact that one uses a weak tie to close the bag and the other a stronger tie with a date on it. The fact that supermarkets bundle the bread together as Eynan is irrelevant, afterall, it is the supermarket and not the baker at fault.

To add insult to injury, Judge Pilpel ruled NIS 50,000 costs against Angel’s bakery for filing such a frivolous lawsuit.

Apparently, according to the judge, despite the similarity between the products, buying the wrong sort of bread is the sort of mistake that is only made once.  I find this argument ridiculous. This bread is not standard bread by definition. Even with standard bread, my kids have a favorite and complain if I buy the wrong one. Can we deduce that the learned judge does all the shopping and her partner doesn’t ever but bread or the opposite?

This is the sort of decision that eloquently presents the case for having professional IP courts.

Categories: Israel, Israel Copyright, Israel Trademark, passing off, trademarks, Uncategorized

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