Israel Trademark Application Number 23875 to Brooks Sports is shown above.
Speedo Holdings B.V. is opposing Brooks Sports Inc.’s trademark application and last month, we reported that Ms Yaara Shoshani Caspi was not prepared to allow Speedo Holdings BV to cancel a hearing at the last minute. Consequently Speedo’s legal counsel, Pearl Cohen, attended the hearing, but without their witness! This was after two attempts by Pearl Cohen to exchange witnesses or to free the witness from having to appear for cross-examination purposes.
Brooks counsel requested that Speedo’s witness statement be struck from the record since he did not make himself available to be cross-examined on it. He strengthened this request by reference to Israe Patent Office Circular M.G. 24 and to Section 17a of the Rules of Evidence, and noted that the witness statement was not signed or legalized either. He also requested costs for attending a hearing with the express purpose of cross-examining the witness who failed to show up.
Pearl Cohen claimed to have a signed and witnessed statement, and that although their actions were damaging and they should pay 1000 Shekels costs to the Applicant, without allowing the Witness Statement to be submitted, their client did not have a case.
Section 67 of the Trademark Ordinance sets out the rules for submitting Witness statements and for cross-examining witnesses. Cross-examination occurs after the Commissioner allows it. Circular M.G. 24 makes clear that if the opposing party wishes to cross-examine a witness, the witness must make himself available for cross-examination. The Circular also allows the Commissioner to remove a statement from the evidence if the witness does not make himself available. This has its parallel in Section 522 (c) of the Civil Court Procedure 1984, and is supported by Supreme Court RUling 53/87 Harel vs Harel PD 43(4) 201-203 (12 Oct 1989). It is further supported by Section 17(a) of the Evidence Regulations. Essentially a witness statement that is not challengable in court due to the witness not showing up is equivalent to hearsay.
In Patent Opposition 115314 Unipharm vs. Eli Lilly, then Deputy Commissioner ISrael Axelrod ruled that where a witness chooses not to attend a hearing or be cross-examined by video conference, his Statement may be canceled and removed from the Evidence. However, in the Vardi vs. Bacardi case and in Circular M.G. 24, the Commissioner has the discretion to allow such evidence to be submitted and there is a general trend away from formalities to a more flexible approach and there is some case-law that allows such evidence to remain of record.
In this instance, Ms Shoshani Caspi considers it appropriate to allow the Witness Statement to remain of record, but accords it low evidence value since the witness did not make himself available for cross-examination purposes.
Although Speedo and Pearl-Cohen have behaved in a manner that is disrespectful to Brooks and their counsel and to the Patent Office by the witness not attending the hearing, it is not clear that this was to avoid cross-examination. Furthermore, the Commissioner of Patents and Trademarks represents the public and not just the parties and there is a public interest in oppositions based on a likelihood of confusion to be examined on their merits.
Thus in the circumstances, the statement was allowed to remain part of the record, but would not be relied upon as being factually indicative. As the Applicant could not know whether the witness would or would not be available for cross-examination purposes, he had no choice but to attend the hearing as scheduled and to prepare for cross-examination. He is therefore entitled to 5000 Shekels + VAT for preparing and attending the hearing. A further 1000 Shekels is ruled against the Opposer to be paid into the public purse and the statement though of record, carries little weight as evidence.