Philanthropical Giving – the fight of the non-profits

David Zilberslag is a well-known, public-spirited, Ultra-Orthodox leader who raises funds for helping those in need. He filed a trademark application (No. 205341) for כח לתת – Koach l’tet, literally, “the power to give”.

The organization L’tet – Humanitarian Aid In Israel, (ארגון לתת) filed an opposition to the mark, but after the applicant, represented by well-known attorney, Dr Yaakov Weinrot, his statement of case with a request for costs, L’tet withdrew their opposition, stating that although they believe the opposition was legally justified, they did not think it was correct use of public funds.

The Commissioner for Patents and Trademarks, Dr Assa Kling, accepted that both the applicant and the opposer did important humanitarian work, but felt that it was more appropriate for such organizations to find other ways to settle their differences than to fight opposition proceedings and generate legal costs. Nevertheless, he could not deny the parties’ right to fight through  the system.

Commissioner Kling ruled that in principle, the applicant was entitled to recover legal costs, but the awarding of such was discretionary on the Patent and Trademark Authority. No details of actual costs incurred were given, and generally actual costs are rarely given, but rather an estimate of fair costs. In light of the circumstances and the fairly early stage at which the dispute was terminated, he decided to use his discretion and not award costs at all.

COMMENT

This is, unfortunately, not the first time (and probably not the last time either) that two humanitarian organizations have been involved in trademark disputes.

Unlike the case of Johnson & Johnson vs. the American Red Cross, regarding the continued use of the red cross symbol by the ambulance service, this case has some merit, in that charities should choose distinguishable names so that donors are not confused who they are supporting.

There are a number of cases where different charities have confusingly similar names. Then again, “to give” is rather generic, and one wonders why anyone should have rights to a word like that for philanthropic purposes.

I can understand the Commissioner’s position regarding philanthropic organizations wasting public money on legal fees. It is, however, a moral – ethical position, not a legal one. From a purely legal standpoint, one wonders if it would not have been appropriate to have awarded the usual costs awarded to an applicant for a trademark, where the opposition is dropped after the applicant files his statement of case. Commissioner Kling is well within the scope of his discretion, and value based judgements have been in vogue since Former Chief Justice Aharon Barak abandoned formalism and instigated more value-centric judgements.

Although I have no strong feelings regarding this decision not to award costs, personally, I am a formalist who prefers the “law is an ass” approach to Law. I note that judges and commissioners are not democratically elected, and often the reasons and methods of selection for such judicial personnel are somewhat murkily concealed.  In such a system, I would prefer judges and commissioners to judge and to award costs in a manner that neither favours plaintiff nor defendant and which is actually neutral to the type of goods or service that a trademark applicant provides. 

I note that we do not know if the Attorneys were actually charging for their time or if they were working pro bono. If one organization that helps the needy opposes a mark filed by another organization, is it wrong that the losing organization should transfer funds to the organization that wins?

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