The Ha’ Hamema (Incubator)

Hahamema

The Term Hamema means incubator or greenhouse. It is used a metaphor as well. For example, the Israel government has a Technology Incubator program for start-ups and a framework attached to a university or the like that supports start-up companies are known as an incubator or Hamema.

Tamir Kaplinski registered a trademark for Ha’Hamema which means ‘the Incubator’ or greenhouse back in November 2006 for entrepreneurship, organizing and hosting functions, shows, parties and entertainments of various kinds, producing and organizing events and clubs, including a school for bar men and DJs all included in Section 41.

In December 2014 Ananei Tikshoret LTD (Cloud Computing LTD) filed for cancellation of the mark claiming lack of use, which is grounds for cancellation under Section 41 of the trademark Ordinance 1972. The mark owner Kaplinsky did not respond so the Ananei Tikshoret submitted their evidence of lack of use, renounced their right to a hearing and requested a ruling based on the evidence.

Section 41 rules that failure to use a mark over a three year period is grounds for it to be canceled. And that anyone can initiate a cancelation procedure. The purpose of canceling unused mark registration is to free them up for use by others, but the applicant for cancelation has to show that the mark is indeed not in use.

It is extraordinarily difficult to prove a lack of use and once a challenger shows some evidence that a mark is not in use, the trademark owner is invited to produce evidence to the contrary. In this instance, the mark owner did not respond which at least establishes a lack of circumstances that justifies the mark remaining on the books, despite apparent lack of use.
Since the mark owner had an opportunity to defend the mark and didn’t, the Deputy Commissioner, Ms Jacqueline Bracha canceled the mark and awarded costs of 2000 Shekels and a further 5000 Shekels legal fees to Ananei Tikshoret LTD

COMMENT

This reminds me of the discussion between the king and Alice in Chapter 7 of through the Looking Glass and What Alice found there:

“I see nobody on the road,” said Alice.
“I only wish I had such eyes,” the King remarked in a fretful tone. “To be able to see Nobody! And at that distance, too! Why, it’s as much as I can do to see real people, by this light!”

I see nobody on the road

It is extraordinarily difficult to prove a lack of use.

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