Distributing Pty. LTD own Israel Trademark no. 97166 “Kambrook” for Electrical kitchen appliances; electrical cooking utensils including toasters, grillers, kettles, coffee makers and frying pans; all included in class 11.
In March 2014, Breville Pty. LTD, represented by JMB, Davis Ben-David filed a request to cancel the mark on the grounds that it hadn’t been in use in Israel over the three years prior to the request for cancellation being filed and was thus invalid under Section 41(a) of the Trademark Ordinance.
Evidence of lack of use included affidavits from John Sergeant, the CEO of Breville, and from Yehuda Golan, a private investigator.
John Sergeant claimed that Breville had bought Kambrook out and had marketed products under the name Kambrook in various countries including Australia, New Zealand, and elsewhere and had attempted to file the mark in Israel. Yehuda Golan checked the High Street chain stores selling electrical equipment and also retailers in Tel Aviv and didn’t find anyone who had heard of the brand.
Despite contacting the Agent of Record, no response was forthcoming from the mark owners. In the circumstances, Ms Yaar Shoshani Caspi felt that Breville had presented sufficient evidence to conclude that the mark was not in use and she ruled that it was thus canceled.
Since Breville themselves claimed that Kambrook no longer existed, she did not award costs as there would not be anyone to collect these from.
Kambrook seems to be in use in Australia and New Zealand. See http://www.kambrook.com.au/
This ruling explains the standards required to prove non-use. It may be compared with the Axxon ruling where the same adjudicator was (rightly) critical of a cancellation request filed by PCZL who did not use a private investigator but rather filed the affidavit of a trainee lawyer who was not qualified to determine use. There the mark was cancelled since the mark holder failed to respond.However as it turns out, the contested mark is actually in use, as I discovered with a basic Internet search