Halla Cloth Monopolies

 Halla cloths are decorative napkin-like covers used on the Sabbath, that symbolize the dew on the double portion of manna collected by the Children of Israel on Fridays in the wilderness.

Back in 2008, Judge Y Shapira issued a temporary injunction against importers of halla cloths, which are decorative napkin-like covers that symbolize the dew on the double portion of manna served to the Children of Israel on Fridays in the wilderness, that are used to cover the traditional double plated loaves used for grace before meals on Shabbat and festivals.

The importer’s designs were similar to those of the plaintiff in that they had “For Sabbath and Festivals” written in the middle, were square, had a semitransparent central region and solid border, they were not copies but variations on a theme. The plaintiff, Karshi, had not registered his design. Since his design was mass-produced, there was no copyright. Nevertheless, Judge Shapira issued a temporary injunction. Oddly, the injunction ruled that selling the product anywhere in the world was illegal, despite IP rights being local and the judge not having territorial jurisdiction outside Israel. See here

In January 2012, Judge Shapira ruled on this case. In his ruling Judge Shapira felt that the evidence shows that the defendant went toChina and ordered similar products to those imported by Karshi, exploiting the market research and product performed by Karshi.

It appears that Shapira believes that one can acquire rights in a design concept. After cross-examining the witnesses, Shapira decided that the imported cloths were inspired by, though not identical to Karshi’s. Shapira then decided that making the temporary injunction permanent was in order, and awarded statutory damages and costs.

the case: T.A. 3402/09 Karshi International vs. Merkaz HaMatanot (2006) LTD, Ezer Deker, and Ami Decorative goods LTD,
15 January 2012, by Judge Y Shapira.

COMMENT

In A.Sh.I.R. the Israel Supreme Court ruled that even if a design is not registered, where the defendant is guilty of non-equitable behavior it is possible to grant injunctions or rule damages under the Law of Unjust Enrichment. Shapira evidently sees this case as falling into that category. Personally, I would prefer to see the Law of Unjust Enrichment being used more sparingly and don’t believe it provides grounds for sanctions against an importer who manufactures similar but not identical goods, having a common design concept.

Whilst accepting the Honorable judge’s argument that sometimes the reputation lies in the design itself, I don’t believe anyone looking for a modest engagement or wedding present cares two hoots about the identity of the importer of a halla cloth. I think people buy such items if they like the design.

As with clothing, any trend or fashion will ultimately start with some brave individuals who dress differently or sell clothing that is slightly different in cut or material. I believe that these leaders are entitled to the advantages accruing of being first off the blocks. They may be entitled to prevent direct copying, which is passing off. They are not entitled to rights in their design concept. We all build on the work of others. No design is totally original.

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