DBS Satellite Services 1988 LTD provides satellite television services in Israel that are branded as YES. The Service is licensed by the Communications Ministry.
DBS Satellite Services 1988 LTD sued the brothers Ahmed and Amar Hamuda for trademark and copyright infringement and damages, requesting the following sanctions:
- A permanent injunction against the defendants to prevent them from distributing, marketing of selling pirate transmission of the Plaintiff, to cease using the plaintiff’s trademarks, including in third party publications. They requested an injunction against them using the plaintiff’s equipment, or equipment supplied by the plaintiff to their customers, for any but personal use, and to cease any non-personal use immediately.
- An order to the defendants or to the receiver to destroy all equipment that enables copyright infringement and all material carrying the YES logo.
- An injunction to remove YES’ registered trademarks from the FACEBOOK page for Acre Satellites and from all other publications.
- A request to reveal accounts going back seven years.
- Statutory damages of 700,000 Shekels under Section 56a of the Copyright Act and Statutory Damages of 100,000 Shekels for trademark infringements (claiming single infringements merely to reduce the court fees) and double costs as a punishment for willful infringement.
- Alternatively, compensation of 1,900,000 Shekels for Unjust Enrichment, (the figures capped to reduce the court fees).
These injunctions were granted by Judge Zernkin, and following the Anton Pillar injunction, equipment and computer records were seized and a summary report was filed to the court by the receiver.
The injunctions were kept in force until the end of proceedings, and for the purposes of the hearing, an order to produce documents and to fill out questionnaires was issued. This happened in the presence of the defendants who then failed to respond. Consequently, using powers under Section 122 of the Civil Court Procedure 1984, the court ruled that the statement of defense be struck from the record. It is noted that the statement of defense was a mere denial without any explanations.
In a ruling of 27 December 2014, Judge Orit Weinstein requested that the Prosecution supply evidence to substantiate their case and on 15 January 2015 they submitted evidence and affidavits of private detectives, by the VP (Engineering) of YES and the Head of Development at YES.
Based of the evidence submitted, Judge Weinstein ruled that there was sufficient grounds for a judgment against the defendants:
The Defendants broke the security encryption of the satellite transmissions and created a pirate industry, marketing and selling YES’ transmissions piratically, without paying YES, and by undercutting YES’ prices, free-riding on YES. YES’ copyright was infringed by the packaging of the transmission channels and the content, and YES’ trademarks were infringed by being used without permission and illegally.
Consequently, Judge Weinstein ruled that the temporary injunctions would become permanent injunctions, that all equipment be destroyed, following the receiver declaring that he was not holding any assets, there was no need to issue an order against him. The FACEBOOK page should be amended and so should all other publications so as not to include the trademarks of the plaintiff. Judge Weinstein further ruled statutory damages of 700,000 Shekels for copyright infringement and of 100,000 Shekels for trademark infringement, 10,000 Shekels expenses and 40,000 Shekels legal costs.
Civil Proceedings 111147-10-13 DBS Satellite Services (1998) LTD vs. Ahmed and Amar Hamuda.
I have no sympathy for the defendants in this case. Nevertheless, although the ruling seems very reasonable and the defendants didn’t exactly defend themselves, in the hands of a good lawyer, they could have raised a number of interesting questions. Free riding is not a crime. YES probably does not own very much of the copyright in their transmissions and creating a copyright in a package of channels is stretching things a little. In a recent Supreme Court Ruling concerning parallel imported Tommy Hilfiger shirts here, the Supreme Court allowed the parallel importer to advertise that it was selling Tommy Hilfiger shirts, but not to claim that it was a registered supplier, and to inform customers that they were not entitled to warranties from the official suppliers. Can one really prevent someone from using the word ‘yes’ on their facebook page or in advertisements?
Piracy is the crime of boarding shipping on the high seas that is punishable under international maritime law by requiring the pirate to walk the plank.
Arguably with regular TV transmissions, there is a case for Ministry of Communications regulation to divide the radio frequencies into separate bands and to prevent channels interfering with each other. I am not sure that for digital signals sent by satellite this is the case. Certainly government tenders have been abused. The tender for commercial radio that then Govt. Minister Shulamit Aloni put together was designed to prevent Arutz 7 from obtaining a license. The same politicians who called the Arutz 7 team pirates and warned about pirate radios risking plane crashes lauded the late peace activist Abu Natan and his pirate radio ship the Voice of Peace and nominated him for a Nobel Prize. When the Supreme Court voted en banc against Arutz 7, without a dissenting voice even mentioning the value of free speech, it was clear that things have deteriorated a long way since Agranat’s deicison re Kol HaAm.
Categories: Copyright, infringement, Israel Copyright, Israel Court Ruling, Opinion, passing off, telecommunication, telecommunications, trademark, trademarks, unjust enrichment, זכות יוצרים, סוד מסחרי, סימן מסחר, קנין רוחני