NOCTUROL

NocturolWellesley Pharmaceuticals LLC submitted Israel Trademark Application No. 284926 for NOCTUROL; a Pharmaceutical preparations for reducing frequency of urination in Class 5.

NocturnoUnipharm, a large Israeli generic drug manufacturer and distributor that sells the mild hypnotic Zopiclone as a treatment for insomnia under the brand-name NOCTURNO opposed the mark on 10 September 2017.

On 11 September 2017, the Court of the Israel Patent & Trademark Office gave Wellesley Pharmaceuticals two months to file a counter-statement of case.

The deadline of 11 November 2017 passed without a  a counter-statement of case being filed, and on 20 November 2017, Unipharm requested that their Opposition be accepted and the application refused.

Section 24(v) of the Trademark Ordinance states:

If the Applicant does not submit such a response, it is as if they have abandoned their mark.

The Opposition to Israel Trademark Application No. 284926 is thus accepted.

In general, the prevailing party is entitled to costs. The considerations are the time involved, complexity, work done, equitable behavior, etc. Under her Authority given in Section 69, the Adjudicator, Ms Yaara Shoshani Caspi, ruled costs of 2000 Shekels including VAT.

COMMENT

Notably, the director of Unipharm, Dr Zebulun Tomer (who has more experience in patent oppositions than any mere lawyer or patent attorney) filed the trademark Opposition himself, without involving their legal counsel Adi Levit.

As Unipharm did not use legal counsel, they are not entitled to costs. This is clear from Patent Oppositions where they prevailed in similar circumstances. The cost ruling was given without sides requesting costs and is appealable to the District Court. However, the I would be surprised if Wellesley contests it.

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