We All Make Mistakes, Dr Cohen…

In earlier blog posts, I reported on two rulings by the Deputy Commissioner, Ms Jacqueline Bracha concerning a late submission of a trademark opposition.  In the first blog post I reported the Original Decision wherein she refused to grant a retroactive extension on the grounds that under her understanding of the Law, she doesn’t have legal competence to do so (ultra vires), and, in the second blog post, I reported on a Second Decision  concerning a Request for Reconsideration which she also dismissed out of hand.

I was somewhat surprised to receive a rather heavy handed and threatening email from Dr Shlomo Cohen  (mis-addressed as Mr, instead of Dr, but common courtesy doesn’t seem to be Dr Cohen’s strong point).

Dr Cohen’s email is reported, verbatim, as follows:

Without Prejudice
For Immediate Action
November 11, 2013
Re: A Further Tortuous Publication
Mr. Factor,
In your recent “IP Factor” publication you have once again provided misleading wrongful information, again with a clear intent to harm us.
I refer specifically to the text in your recent publication “but apparently due to a human error by their representatives, Dr. Shlomo Cohen & Partners, Law Offices, the opposition was submitted on 2 October 2013, missing the three month deadline of 30 September 2013 by a couple of days”. This language is wrong, misleading and intentionally harmful.
As you well know this is not the first time you have acted maliciously in an attempt to twist facts and injure this firm.
This time we will enforce our rights in full!
We demand that you:
a. Immediately (by Tuesday November 12, 2013 at 10:00am) remove this language from your publication.
b. Within three days (by Thursday November 14, 2013 at 2:00pm) publish an apology and retraction for this wrongful language with a text to be approved by us no later than Wednesday November 13 at noon.
c. Pay us statutory damages of NIS 100,000, by Sunday November 17, 2013
d. We will then follow up on your previous injurious malicious publications and demand full compensation for them as well, as we have warned you in the past
If you do not comply with these demands, at the times stated, we will take all necessary legal action to enforce our rights
No further warning will be sent.
Shlomo Cohen
Dr. Shlomo Cohen & Co.
Century Tower
124 Ibn Gvirol
Tel-Aviv 6203854, Israel
Phone: (972-3) 527 1919
Fax: (972-3) 527 2666
E mail: cohens@shlomocohen.co.il
Web: http://www.shlomocohen.co.il
IMPORTANT: The contents of this email and attachments are confidential and may be subject to legal privilege and copyright. Copying or communicating any part of it to others is prohibited and may be unlawful. If you are not the intended recipient, please delete it immediately and notify us by telephone. Thank you.

I was somewhat surprised to receive this notification, since Ms Bracha had clearly reported the grounds for the request for the extension in her decision. accusations of publishing misleading wrongful information should not be taken lightly.  I wondered if I had misunderstood the ruling.  I rang the Israel Patent & Trademarks Office to try to obtain clarification. After all, in a previous report concerning a missed deadline, due to poor phrasing, I’d erroneously attributed an action of the client’s representative (meaning CEO) to their legal representative. Mistakes do happen. Unfortunately, but not surprisingly, Ms Bracha’s secretary referred me to the legal aids who informed me that they don’t clarify decisions. Very helpfully however, they forwarded me the correspondence in the file which is all public domain. This is a link to the Original Submission by Dr Shlomo Cohen, Law Offices. Here is a Notarized Translation.

I was bemused. I really could not see what Dr Cohen was objecting to. I decided to ask him. Here is my email to him:

Dear Dr Cohen,

I apologize for not responding to you earlier.  I wished to first review the decision and also the appeal wherein you tried various creative interpretations of the Law which were dismissed out of hand by the deputy commissioner. I don’t see how my report may fairly be considered wrong, misleading and intentionally harmful. In case, the Deputy Commissioner had made a mistake or I had misinterpreted her ruling I have now obtained and reviewed the file. I am at a total loss to understand what you are objecting to. Please clarify and I will consider correcting. If after clarification, it appears that an apology is called for, I have no problem apologizing. I did, indeed, make a mistake regarding an action wrongfully attributed to a different IP firm due to poor wording of the decision, and I immediately published a retraction and apologized. In this case, however, I don’t see that there is anything to apologize about. I report decisions of the Israel Patent Office and of the course. I try to do it fairly and objectively. If you have a genuine grievance, you are invited to come over to my office and we’ll talk about it over lunch.
If you prefer, simply answer the following questions:

1. Did someone in your office miss the three month deadline for filing a trademark opposition?

2. Was this due to human error?

3. Was the human error that of someone in your office?

4. Was my decision an unfair summary of the patent office ruling as published?

5. Did the original decision by Ms Bracha, or the second one following the creative if somewhat strange reconsideration request report that someone in your office had made a mistake?

6. Was this a mistake by the Deputy Commissioner Ms Bracha?

7. If my report was wrong and misleading, how do you understand the third paragraph of the letter from your firm and line 5 of the appended affidavit of Adv. Liron Cohen of Dr Shlomo Cohen – Law Offices?8. If my report was wrong and misleading, presumably the affidavit of Adv. Liron Cohen of Dr Shlomo Cohen – Law Offices was inaccurate or misleading. In this case, why did Adv. Robert Doriano of your firm sign it?

Wishing you a Shabbat Shalom,
Dr Michael Factor

The response was somewhat abrupt, but hardly enlightening as to the grounds of his complaint:

Mr Factor,
I have no intention of engaging in your haggling.
Remove your falsehoods by noon Friday or face the consequences.

I find Dr Cohen’s attitude distressing. I try to fairly and objectively report on all decisions of the patent office and the courts. Where the identity of the legal representatives is pertinent, I think it is fair to report this. In this case, I believe it is fair and relevant.

Readers will note that Dr Cohen’s letter is titled “A further tortuous publication”. It refers to ‘once again’. For interested readers, in an earlier post, I referred to the Omrix case where Dr Cohen & Partners Law Offices represented the State of Israel against a company benefiting from a technology that the State of Israel considers to be based on service inventions.

I take exception to Dr Shlomo Cohen stating that his is not the first time I have acted maliciously in an attempt to twist facts and injure his firm. I try to report facts accurately.

Regarding lies, slander and defamation, it is pertinent to note that back in 2005 and 2007, Dr Shlomo Cohen filed suit in the Israel Magistrates Court, against Globes, an Israel business newspaper, making similar allegations. In her ruling, the Honorable Judge Oshri Frust-Frankel noted that “we are dealing with repeating a publication that benefits from complete and total defence, since that published was the content of a court ruling, that issued during legal proceedings…“. In her review of similar decisions, the Judge also noted that the “reporting should reflect that said or written in the proceedings being reported, and should be fair.” The second article, which published prior to the first case being ruled on, fairly reflected the decision of the court and was thus a permitted publication.

Of course, I can’t stop Dr Cohen from suing me if he feels injured. However, I have given him every opportunity to explain what his grievances are.  I suppose it would be churlish to point out that in a decision last week,  NIS 60,000 in legal fees were awarded against Dr Cohen when he lost an appeal for a frivolous lawsuit filed against Bezeq and Netvision that was thrown out by the court of first instance.  See ע”א 3407-09-12, שלמה כהן נ’ נטוויז’ן ואח’ / פס”ד.

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