Intellectual Property Law in Israel – Book Review

RCIP Kukick

Intellectual Property Law in Israel is a 256 page soft back book published by Wolters Kluwer that was originally published as a monograph in the International Encyclopaedia of Laws/Intellectual Property Law.

The book has a general introduction consisting of a general background to Israel, and a historical background. It then has seven chapters, devoted respectively to Copyright and Neighboring Rights, Patents, Trademarks, Industrial Designs, Plant Variety Protection, Chip Protection and Unjust Enrichment. The layout of each chapter is well organized.

Partly reflecting the subject matter and the fact that this is a reference book not designed to be read from cover to cover, but also because the authors are not native English speakers and the grammar constructions used are both incorrect and arduous, the volume is as dry as a hand-baked matzo.  It is, nevertheless, a convenient and easy to use reference book to note the coverage and main points of Intellectual Property law in Israel, and its title is thus appropriate.

The background is a background to Israel and Israeli law. It is not a background to IP in Israel. If it were, as I believe it should have been, it could usefully have included some statistics regarding publishing of books in Israel and the numbers of patents and trademarks filed in Israel, and worldwide by Israeli applicants. There is brief mention elsewhere of the enforceability of Israeli trademarks in the Palestinian semi-autonomous territories, but the background could have dealt with intellectual property in these areas more thoroughly, not least because there is significant counterfeiting going on these areas. The background does note that Israel has peace treaties with Egypt and Jordan. It does not refer to the informal boycott of Israeli companies that Jordan lawyers participate in. A brief discussion of intellectual property in Jewish Law would also have been welcome. Indeed, this has impacted Israel court decisions on occasion.

 The sections on the different types of intellectual property law are comprehensive and well organized. Each chapter presents a portion that is short enough to be digestible. Nevertheless, the book is peppered with statements that are confusing. For example, and following the Israel Patent Law, we are informed that patent applications need titles in both Hebrew and English. There is, however, no statement to the effect that patent applications may be filed with the Israel patent office in English or Hebrew. One assumes that foreign applicants and their local counsel may be interested to know that patent applications may be filed in English and need not be translated into Hebrew. There is also a confusing statement that the fictitious man-of-the-art who knows everything but lacks creativity may actually be a group of fictitious persons. One wonders what this additional fiction adds. In the chapter on Trademark Law, after a general overview and a section on specific legislation, there is a section titled Trademark Jurisprudence. This section explains that Supreme Court decisions are binding precedent on the lower courts. It also explains that District courts are the court of first instance for trademark infringement and have appellate jurisdiction over the decisions of the registrar. Then we are informed that district court decisions have suggestive but not precedential value, which guide the magistrate’s courts. What is not explained however, is how magistrate courts, which don’t hear trademark disputes, are guided. It would be both useful and informative to note that despite the precedential or guiding nature of trademark decisions, since every case is considered on its merits, the caselaw provides arguments to each side, but it is next to impossible to anticipate how a specific case will be ruled.

Regarding Designs, as a quirk of the fact that Israel is still using the relevant section of the Patents and Design Law 1924, only local novelty is required. In 2008, the former registrar Dr Meir Noam interpreted this to include Internet publications whether viewed in Israel or not, to prevent parties from registering designs that are published in databases of foreign patent offices. The book takes the position that this is now the law, without noting that the relevant patent office circular is more akin to legislation by the registrar and is thus ultra vires and might well not stand up if challenged in court. In other cases, the authors note that various interpretations seem clear, despite never having been ruled on by the courts. I would agree with the authors that industrial designs are territorial, but former Jerusalem District Judge and current State Comptroller Shapira issued a worldwide injunction concerning unregistered designs for ceremonial challah cloths, and, given the dirth of design law from the courts, might have warranted a footnote. Actually, without specialist IP courts, there are a number of weird and wonderful rulings from the Israel District Courts that could be discussed to make the book more entertaining.

This volume is a four author publication written by an academic called Afiori and by attorneys at Gilat Bareket, one also being an Afiori, rasing the suspicion that two of the authors are probably related. The other two authors and Gilat and Bareket, the named partners of the litigation arm of the Reinhold Cohn group. The book is published by Wolters Kluwer. The entire volume, including index and selected bibliography is a mere 256 pages.

Noticeable in absentia is any reference in the selected bibliography to a volume with an almost identical title – Intellectual Property Law and Practice in Israel here  that was written by Eran Liss and Dan Adin of a competing firm of litigators that was published last year by Oxford University Press.  The Liss – Adin book is 632 pages with 50 pages of appendices, and is thus thicker and more impressive on the shelf, if a little bulkier and heavy to carry around. Both books contain typos, unnecessary verbosity, wrong long words and poor grammar, but the Kluwer volume is, nevertheless, in better English.

The focus on practice in the Liss – Adin book has lead to their copyright section relating to TV game-show formats which look as though they are a lawsuit waiting to happen. The Gilat, Bareket Anfori volume does not cover this area, possibly because thee are no relevant decisions.

As a reference work for foreign practitioners and as a revision tool for wannabee Israel Patent Attorneys prior to sitting the oral exam, this volume is preferable, since it is not burdened down with as much case-law. For reading on a plane to Israel, the fact that this volume weighs in at 386 g whereas the other book is over a kilogram, makes this more attractive. This book is also cheaper, although the Liss – Adin book works out more economical per page. As a reference to caselaw for academics or for Israel practitioners involved in prosecution or litigation, the Liss – Adin book is better.  Their cover also includes flaps life fly-leaves extending from the front and back boards which can be used as pagemarks.  Very few people need both volumes, which raises questions as to whether this book is necessary, following the recent publication of the other one.

Intellectual Property Law in Israel, by Orit Fischman Afori, David Gilat, Eran Bareket and tamir Afori, Wolters Kluwer, 2013, ISBN 978-90-411-4859-9 List price: £ 84,00 (GBP); $ 141,75 (USD)

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