Patent Office Closures for Pesach

April 2, 2017
seder table
Because of the upcoming Pesach (Passover) holidays theIsrael Patent and Trademark Office (ILPTO) will be closed from Monday, April 10, 2017 – Monday, April 17, 2017 (inclusive).
In general, when a deadline falls on a day that the patent office is closed, the deadline is extended to the first subsequent working day, so any deadline for submissions, including PCT applications, national phase entries and Paris Convention deadlines falling from 10th April to 17th April can be submitted on 18th April 2017.
Note, the Patent Office is always closed on Fridays and Saturdays so will be closed on 7th and 8th of April, BUT since Sunday is a regular working day and so deadlines falling on 7, 8 or 9th April must be filed on 9th April.
Additional Israel Patent Office closures are as follows:
  • Israel Independence Day on Tuesday, May 2, 2017
  • Shavuot (Pentecost – the Feast of Weeks) –  Tuesday, May 30, 2017 and Wednesday, May 31, 2017.

The Kosher IP Dinner (KIPA) at INTA

March 30, 2017

kosher restaurantsAt the INTA Conference every year, the Kashrut observing practitioners try to get together for dinner one evening in a local Kosher restaurant. It is really a way to compare pita and humus followed by entrecote & chips at Chabad houses and Kosher restaurants around the world.

This year, INTA is in Barcelona, from 20th to 24th May.

kosher dining clubSo far, via the KIPA google group, we have 10 people who have expressed an interest in attending dinner, of which 4 can meet for supper on Sunday, 8 are available on Monday and 2 can meet on Tuesday. (I am not voting).

We usually get about 25-30 participants. Next year the conference is over Shavuot, so it this will be the last INTA KIPA dinner until 2019!

Although for obvious reasons, this event seems to attract Jewish practitioners, particularly those more committed to the dietary laws, the event is open to everyone. Occasionally someone sponsors, but generally we go Dutch. It makes a change from nibbling on raw vegetables and eating peanuts at the larger receptions.

days-of-week-song-gestures Anyway, assuming that most IP professionals that would be interested in this dinner follow this blog, I invite you to email me to register. I will put you in touch with the group, and by the middle of next week, we will select the day.

However, unless there is a surge of interest for Sunday or Tuesday, it does rather look as though we’ll be meeting Monday evening.


K -KOSHER – Looking for contributions to Oppose Indian Trademark Application

January 16, 2017

k-kosher

India has the world’s second largest population, its third largest economy and is the second largest producer of food after China.

India is a ‘global hotspot’ for food manufacturers, food producers, and food ingredient professionals. The country is now becoming an integral part of the global food ingredient network and supply chain. Given this trend, India has become one of the most important destinations for food investment, with the food industry growing at an annual rate of 17%. As food exports continue to increase in India, many Indian food manufacturers are required to certify that their products and ingredients are kosher.

In April 2016, Indian trademark Application Number 3243779 was filed by Mrs. Suchi Agarwal trading as AMRIT EXCLUSIF. The mark covers beverages including wine, spirits, liquors, whisky, brandy, rum, vodka, gin and Scotch all included in class 33. Ms Agarwal already has the word mark for leather goods.

Veteran Israel Trademark Attorney Neil Wilkof brought this application to my attention.

 

Wine is a key element in the rituals that mark the onset and end of the Jewish Sabbath and festivals, and features in life cycle events such as circumcision and wedding ceremonies. Perhaps due to its centrality, over the millenia, very stringent manufacturing and storage requirements have been developed that must be met for wine and brandy to be considered Kosher.

Neil’s problem is that the 3243779 mark is misleading in that if applied to the beverages listed, consumers would assume that the beverages are Kosher. On the other hand, no one organization should be able to prevent other manufacturers from using the work Kosher on wines that are manufactured in accordance with Jewish Law, and under bona fide Rabbinical supervision. There are a number of Indian trademarks for Halal marks including 1131733 (wordmark) and 1131732 and 1493214 which are each slightly stylized. A Moslem purchasing meat labeled as Halal would expect it to be from a clean animal that is slaughtered with a knife in accordance with Moslem practice and beverages labeled as Halal to be free from Alcohol. Similarly Jews should be able to expect wine or meat labeled as Kosher to be manufactured and stored in accordance with Jewish Law.

Neil and I have discussed the case with retired trademark expert Professor Jeremy Phillips as well as with the local Indian trademark counsel who brought the application to Neil’s attention. We all believe that there are grounds to oppose this registration under the Indian Trademark Law. The deadline for filing an Opposition is in mid-February 2017. We are happy to donate are time to this cause and I’ve reached out to the officer who handles fraud in matters of Kosher food for the Israel government.

None of us knows any Jewish licensed trademark Attorneys in India, and whilst we believe that Buddhists and Moslems will be sympathetic to the cause, we cannot expect a non-Jewish practitioner to work Pro Bono on this matter. Neil has consulted with the firm in India and it is estimated that the cost of fighting this opposition  could amount to $2000 – $3000. Neil and I are willing to assist the firm pro bono as needed.  If we can now find 20-30 practitioners who will each put $100 in the pot, we will have a budget for fighting this. Neil and I have agreed to put in the first couple of hundred. Please contact either of us if you’d be prepared to help.


Shabbat Lifts Not for the Public Good

July 18, 2016

 

shabbat liftG.L. Glatt Lift Company Ltd. filed a patent application for a Shabbat Lift; an elevator that may be used on the Jewish Sabbath without transgression of the holy day. (The term Glatt relates to a standard for Kosher beef that the generally accepted Ashkenazi authorities consider a stringency. By transference, the term implies super-Kosher, or something similar. Many Jewish authorities allow usage of a lift that stops automatically, or riding in a lift in a hospital or similar if someone assumed to be non-Jewish operates it for their benefit. Other authorities are stricter. More discussion on this is given at the end of this article).

Maalit ShabbatIn this instance, the Applicants have filed a patent for a technological Hallachic solution that is allegedly novel and inventive and that is claimed to overcome the reservations of those Hallachic authorities that do not allow usage of the type of ‘Shabbat Lifts’ that are common in apartment blocks with religious residents.

Israel Patent Application No. IL 221842 titled “Shabbat Lift” was submitted on 9 September 2012. The application claims priority from a US provisional application number 61/533,244 that was filed on 11 September 2011, and a corresponding PCT application, No PCT/IB2012/054604 was also filed.

On 13 October 2015, the Applicants received a Notice Prior to Examination to which they responded on 1 February 2016 with a list of prior art. The submission of a response to the Notice Prior to Examination creates a state of affairs by which the application is ready for examination (see section 5.3 of the Examination Procedure for Examiners).

On 1 February 2016 the Applicant also submitted a request for accelerated examination, which is a petition to make special. The justification for the request was that awarding the patent was in the public interest.

The Applicant claimed that the lack of appropriate Shabbat lifts prevented high-rise accommodation for the Ultra-Orthodox and the proposed solution would overcome this barrier. The Applicant considered that his invention would facilitate high-rise Ultra-Orthodox accommodation and thereby minimize land usage (by increasing the population density) and would thereby lower building costs.The solution would also make life easier for the ill, the elderly and children who could not use elevators on Shabbat. Various articles regarding the lack of accommodation for the Ultra-Orthodox were appended.

The statement was not specific, but it appears that the legal support was claimed from Section 19a (v) and (vi) that state that:

An applicant for accelerated examination with reasonable arguments may submit a reasoned request, together with a statement supporting the facts; all of the following, inter alia, may be considered reasonable justification:

(5) common good;

(6) special justifying circumstances.

Generally patents are examined in turn so ‘first come, first served’ as per Section 9 of the Patent Law:

If more than one applicant request a patent for the same invention, he that first applied will prevail. 

The order of examination is generally on a ‘first come, first served’ basis as per Section 34a of the regulations:

34a the applications will be allocated to each internal classification group and within each classification group, will be examined in turn. 

Examination in turn both facilitates Section 9 and also ensures that relevant prior art is available to the Examiner. The first come, first served regime is itself in the public interest – See ruling re Petition to make special Israel Patent Application no. IL 216870 to Cimas Limited, 24 March 2014.

The possibility for making an application special is an exception to the general rule. It undermines the principle of ‘first come first served’, makes the examination more difficult and arguably damages the quality of the examination.  For example, a queue-jumping application may be examined and allowed without realizing that an earlier filed application that was not examined challenges the novelty or inventiveness of the claims. Any fast-tracking results in other applications being delayed and is thus against the public interest.

Fast-tracking risks unfairness, but the legislators allow it under circumstances detailed in Section 19a of the Law where there is an over-riding public interest or special circumstances. Section 19a was legislated in the 10th amendment to the patent law that came into effect on 12 July 2012. From examination of the discussion at the committee state it is clear that the Commissioner has the discretion to explain the law. It is clear that the type of justification that is acceptable is extreme circumstances. For example: there could be circumstances that a dramatic discovery is like an earthquake and is positive for the State of Israel. Isaak Herzog, Knesset legislative committee discussion of 13 March 2012.

The justifications listed in Section 19a were actually those for third parties to request an application be fast-tracked but there is no reason to suppose that they are not applicable to requests by the Applicant himself. Nevertheless it appears that what the legislators intended was something of interest to the entire population as of national interest for the whole population and not for micro-economic interests of one sector or another. There is an underlying assumption of public interest in all patents. The only justification for ever granting a patent (i.e. a monopoly, albeit limited in time and geographical application) is that there is a national interest in micro-economic profits and technological progress.

No-one challenges the fact that each patent provides a different public interest depending on the type of invention and its application. There is no clear economic or social scale that can be used to rank different patents. However the same term is generally understood in the same manner in different legislation to provide coherency (see Aharon Barak, Volume 2, Legislative Interpretation, Nevo 1993 pages 313 and 321. Thus the term “common good” in Section 19a of the patent law is a priori similar to the term in Section 122 which discusses forced licenses. Section 122 states:

The Commissioner, where he comes to consider the request for a compulsory license under Section 117 should consider, inter alia:….

….

(2) the common good generally obliges that all inventions should provide the protected goods by manufacturing or import, so enable widest possible supply in the circumstances, without delay.. 

The District Court ruled in 881/94 Eli Lilly and Company vs. TEVA Pharmaceuticals LTD 25 November 1998:

In the field of patents, the common interest is the main and dominant cause for determining balances and rights. There may be a specific basis for worrying for private interest of the specific owners, and a patent an be considered as a reward that the legislators bestows on the entrepreneur. But the main justification of the patent system is the public considerations of utility and profit that affect the community taken as a whole. Whilst it is true that a patent provides protection to an individual, the existence of the right and its extent are determined by how much they fulfill the public interest. In this regard a patent is like a compulsory license. In both cases a personal right is provided to an individual but the underlying rationale for granting the rights is the common good. Just as the compulsory license is not granted for the benefit of the applicant, similarly a patent is only granted to the owners because it is in the public interest. It is not a balance between private rights and the public interest, but rather a balance between different public interests that together define the common good.

Thus the common good in this instance, as with compulsory licenses, is the result of balancing different public interests. Where the Applicant desires to depart from the general balance of interests including the principle of ‘first come first served’, the justification for jumping the queue has to be something weighty of significance to the wider public or a positive macro economic effect.

Furthermore, from when the application is filed until it eventually issues as a patent, there is nothing preventing the applicant from implementing the invention described in the patent application, enabling the public to benefit immediately. The enforcement of a patent is of economic interest to the patentee only. First tracking is not in the public interest at all. It only serves the applicant.

Without addressing the issue of patentability at all at this stage, the Commissioner does not thing that the present invention is more ‘public good’ than other inventions and, as the applicant himself testified, it serves a specific population segment only. The petition to make special did not include any economic calculation to show why it was justified.

Although the above arguments relate to the ‘public good’ they are equally applicable to the ‘special reasons justifying advancing the examination’. Consequently the application for fast-tracking is rejected and the application will be examined in turn.

Ruling by Commissioner Asa Kling Concerning Making Special Israel Patent Application Number IL 221842 to Glatt Lifts LTD., 14 June 2016 

COMMENTS

Very few inventions positively affect everyone. If something could help 10% of the population, it seems to me that it should be considered of significance, whether the population is women, AIDS sufferers, people living near the Gazan border, parents of small children or the Ultra-Orthodox. I don’t see any reason why common good should be interpreted as of value to people across the population without regard to race, age, religion, religiosity or sexual orientation.

The underlying presumption of the Applicant is that conventional elevators do more electrical work for each passenger riding in the elevator and that this is against the laws of Shabbat to rely on Shabbat settings on lists. If this assumption is true, it affects all Jews and most of Israel’s population is Jewish. Even if many Jews are not Observant, and many more are not persuaded that using currently available Shabbat lifts are not acceptable I suspect that from the Applicant’s perspective, Shabbat observance is of value and desecration is problematic regardless of the religious philosophy of the Jew in question. It may be what’s preventing the Messiah from coming. Furthermore, the State of Israel accepts the principle of Shabbat observance as being of national interest by not allowing trading on Shabbat and by not having Shabbat desecration by the Head of State, ambassadors, etc. and by requiring Shabbat observance on army bases apart from where security considerations take precedence.

For more details of the ruling (wrongly???) attributed to Rav Elyashiv, see here. See also a report in the Yeshiva World (sic) and one from the UK’s Daily Telegraph. Rabbi Yisrael Rozen’s ruling allowing both ascending and descending in Shabbat Elevators and listing what modifications are required to enable an elevator to be used on Shabbat may be found here (Tchumin 5, 75; see also article by Professor Lev in same volume, page 58).

I took the liberty of reviewing IL 221842 to Glatt Lifts LTD and its claims. If I was examining it for patentability, I would disallow it as not being enabled. It may be enabled from the perspective of the Hallachic problem it is trying to solve, but in my opinion, it does not provide a solution that enables a person of the art to go away and build a working lift without undue experimentation which is the standard for which patent applications are judged.


Chabad and Lubavitch – who owns the name?

June 9, 2016
chabad

Group photo of Chabad Emissaries

Israel trademark applications IL 232770 and 232271 for Lubavitch (English letters) and for Chabad (in Hebrew and English) were submitted by two non-profit organizations: (1) The Chabad Hassidic Association in Our Holy Land, and (2) The young Chabad Association (Zeirei Chabad). The marks are for the words without graphic elements.The Commissioner refused to allow the marks as he considered the terms as referring to a lifestyle that anyone can adopt and that names of religious movements cannot be monopolized.

Background

Chabad is an acronym for “Chochma Bina Daat” meaning “wisdom, understanding and knowledge” which are the top three spheres of the Kabbalistic tree of life. It is the name adopted by Lubavitch, a cult Hassidic sect  that does wonderful work promoting Judaism to Jews of all levels of religiosity, and maintains Habad Houses – Outreach Centers offering religious services and hospitality around the world, which this non-Hassidic writer frequently visits for Shabbat hospitality when travelling. Chabad is Orthodox, Zionist and nationalistic. It differs from other Hassidic groups in that it is not insular, and sees a respondbility for and has a love for all Jews. However, their atitude is moe missionary than pluralistic. It has often said that “The movement does not recognize political or religious distinctions within Judaism. It has refused to cooperate formally with any identifiable organization or institution. It recognizes only two types of Jew, the fully observant and devout Lubavitcher Jew and the potentially devout and observant Lubavitcher Jew.”

messiah poster.jpg

The last ‘Rebbe’ (spiritual leader) saw signs of the Messianic Era approaching with the return to Zion, Jewish statehood and various other developments of the latter half of the 20th Century. Some of his followers considered him the obvious candidate Messiah, and, having suffered a stroke that affecting his speaking, wherther or not he was so inclined, the Rebbe was ineffective at persuading them otherwise. Rabbi Menachem Mendel Shneerson passed away in 1994, and some followers had problems coming to terms with this and got caught up in a Messianic fevor reminiscent of the Shabtai Zvi incident. Chabad is currently without a supreme leader, but most followers have come to terms with the Rebbe’s lack of immortality.

I am aware that there are Israel IP practitioners and Examiners who affiliate with the movement. If you consider that anything I write here is inaccurate, offensive, or you  simply disagree, you are cordially invited to comment.

The trademarks

In Israel trademark applications IL 232770 and 232271 for Lubavitch (English letters) and for Chabad (in Hebrew and English) were submitted by two non-profit organizations:
(1) The Chabad Hassidic Association in Our Holy Land, and (2)
The Young Chabad Association (Zeirei Chabad).
The marks are for the words without graphic elements.

The Applications cover a wide range of goods and services including Section 16 for pamphlets, advertising and guidance manuals; section 25 for clothing, shoes and head coverings; section 26 for embroidery and embroidered articles; Section 28 for toys and games; Section 29 for meat, fist, poultry, milk and milk products, section 30 for flour and grain based products; section 31 for fresh fruit and vegetables and live flowers; section 35 for advertisements, business management, services to business and office services; section 43 for finance and philanthropy; section 41 for education services and propaganda explanatory literature relating to religion and tradition; section 43 for Science and technology, research and design related to these services including design and development for computer software and hardware;section 43 for food, beverage and temporary accommodation, and section 45 for providing help and support for the needy.

As to the Chabad mark, the Israel trademark examiners found the mark non-registerable as they considered it contrary to Section 8(a) of the Trademark Ordinance 1972, considering the marks lacking distinctive character for the goods and services provided as they describe a movement or way of life that anyone can adopt. The Examiner noted that the acronym Chabad related to a Religious-Hassidic-Philosophical lifestyle originating in the 18th Century and that the name embraces many organizations, institutions and communities, and allowing one such organization to monopolize the name will prevent others from using it. This will confiscate something already in the public domain and thus is not allowable.

The Examiners also considered the marks to be non-registerable under section 11(5) of the Ordinance, as giving one organization a monopoly of the name would prevent others using it, and the name was for a way of life or religious movement and its registration as a trademark was contrary to public interest.  Similarly Lubavitch, as a synonym for Chabad, could not be registered, and it was also non-registerable under Section 11(11) of the Ordinance being a place-name in Russia.

The Applicants requested a hearing and, after various postponements, this was held on 20 May 2014, and, in addition to their legal representative, Adv Amnon HaLevi Gat, the organizations were represented by Rabbi Ariel Lemberg. The Applicants  main argument was that they acted under the direction of the 7th Lubavitcher Rebbe from 1951 to 1994, and if the mark is not registerable, it will damage the public as other organizations may call themselves Chabad. The Commissioner considered that many of the arguments raised were not relevant to trademark registration. At the end of hearing, the Applicants were given permission to address specific issues raised under Sections 8(a) 11(5) and 11(11).

three crates

Eventually, after further delays, on 28 January 2015, A Statement from Rabbi Lemberg was submitted together with three crates of appendices. The appendices included copies of hand-written instructions from the Lubavitcher Rebbe in which he requests or commands the Applicants to manage the movement in Israel; research on Chabad leadership in Israel, files of supporting letters from Chabad Emissaries in Israel, most of which followed a template, and various papers about Chabad institutions and associations and their activities, books, photo-albums, pamphlets and flags, packages of Shabbat candles, bags (for prayer shawls?) and other paraphernalia.

chchabad leadership

The Commissioner claims that the evidence was carefully and deeply considered. One document titled “Who did the Rebbe Authorize to lead Chabad in Israel?  – Fundamental Research and a Thorough Analysis of the Rebbe’s Writings and Archives on the Issue”. The document was authored by Menachem Bronfman. It was not clear where, if at all, the paper was published and, according to the ruling, it appears to have been prepared for the purpose of this Application .  This document included the literature submitted by Rabbi Lemberg. That as may be, the document cannot be considered as evidence as its provenance was not clarified, despite Applicants being given an opportunity to provide additional information. That as  may be, if any weight is given to the document, it clearly shows that there are other Chabad organizations beyond the two that applied for the marks. The Applicants consider that the other organizations are internal divisions and that they alone have the authority to represent the extended Chabad organizational structure to the outside world.  The Commissioner is skeptical that a divisional between internal and external organizations is relevant where trademarks are in rem. That as maybe, the Commissioner did not consider that the Applicants had shown that an up-to-date-list of official Chabad organizations had provided up-to-date authority to the two Applicants to represent them.

Rabbi Lemberg denied that the words Chabad and Lubavitch were in the public domain and argued that the terms where the property of the Applicants who had caused them to penetrate the public awareness through their activities during the past 80 and 70 years respectively.  He submitted that the requests should be considered attempts to anchor the rights of the Applicants in the Law, and not as attempts to take over names in the public domain.

Rabbi Lemberg considered that the last Rebbe, Grand Rabbi Menachem Mendel Schneerson, had commanded the two Applicants to manage everything with the Chabad seal on it, and that the seal means trademark. In this regard, he cited an open Responsa letter from the  Rebbe from 13 Kislev 5712  (1951 CE) where it is stated that:

“…there should be one representative of all the institutions, and this should be the Chabad Association which should represent all Chabad institutions in the Holy Land to the outside world, as and when required.”

The Commissioner notes that even if great weight should be placed on this instruction, the organization mentioned is called “Chabad Association”. The Applicants testify that they are the Chabad Association, but since there are other Chabad institutions, the Applicants should have provided evidence that they were the Chabad Association and have failed to do so.

Rabbi Lemberg claimed that there is consensus among all Chabad organizations that the commands and orders of the Rebbe are binding on all groupies members and extrapolates that the Applicants are the authorized parties to register the mark in their name. The young Chabad Association is the executive arm of the Chabad Hassidic Association in Our Holy Land (also not mentioned in the Rebbe’s letter) and  Chabad’s internal Rabbinic Courts have thus determined things (also not supported by any evidence submitted).

As to the authorization of the Rebbe during his lifetime as testified in a book published by  the Chabad Hassidic Association in Our Holy Land, the Commissioner failed to see the relevance of that or other books being published by the organization as proof of the Rebbe’s wishes or rights to the requested marks.

Applicants claimed that their activities as laid out in their charters as non-profitable organizations were authorized by the Rebbe. However, the charters were not submitted in their entirety.

tug of war

Rabbi Lemberg’s affidavit stated that the  Chabad Hassidic Association in Our Holy Land was authorized to : “Represent Chabadniks not other represented, mediate between institutions, externally audit Chabad institutions, to be aware of developments in Israel, to be responsible for Public Relations, to guard Chabad’s status as a non-political organization, to make contact with public figures and rabbis, to look after the form and opening of Chabad synagogues to the public, to provide funds and to strengthen Judaism, and to obtain manuscripts of the various Rebbes.

The second applicant,  the young Chabad Association is the representative arm of the Chabad Hassidic Association in Our Holy Land. The organization is responsible for outreach work in Israel, teaching the Jewish Heritage to children, youth and adults, disseminating Chabad Hassidic teachings, aid and help to the needy and lonely and providing rescue services.

According to the Commissioner, review of the lists and the exciting material submitted provides evidence of important and blessed activities by the two Associations. However, he does not see how one can prevent someone who believes in the lifestyle of Chabad; who puts the values of Wisdom, Understanding and Knowledge before him; but who does not follow the Applicants, from engaging in the activities listed and calling himself a Chabadnik.

As to Section 11(11), Rabbi Lemberg submitted that although Lubavitch is a place in Russia, the term has come to represent the Hassidic sect and is of no relevance to those identifying with Chabad Hassidim. For most of his life, the Rebbe lived in Brooklyn, New York, USA and earlier Rebbes also were not domiciled in the town of Lubavitch. That said, Rabbi Lemberg claimed that the association of the term Lubavitch with the organization was the result of 70 to 80 years activity by the Applicants.

In light of the above, the Commissioner was not convinced that the term Chabad was exclusively identified with the Applicants, nor was this claimed. The Applicants do not dispute that the terms Chabad and Lubavitch are  identified with a religious movement and faith-based lifestyle. Nevertheless, the Applicants consider themselves entitled to a monopoly over these terms when applied to a wide range of disparate commercial services and traded goods.

Since the marks are not necessarily uniquely identified with the Applicants, they do not fulfill the basic requirements of registration, which is inherent or acquired distinctiveness of the source of goods, as stated in Section 8 of the Trademark Ordinance:

8.—(a) No mark is eligible for registration as a trade mark unless it is adapted to distinguish the goods of the proprietor of the mark from those of other persons (a mark so adapted being hereinafter referred to as a “distinctive mark”).

(b) In determining whether a trade mark is distinctive, the Registrar or the Court may, in the case of a trade mark in actual use, take into consideration the extent to which such use has rendered such trade mark in fact distinctive for goods in respect of which it is registered or intended to be registered.

The marks Chabad and Lubavitch are not identified by the public  as originating with the Applicants, but are rather identified with a particular teaching and lifestyle. It is, however, also necessary to consider if these marks have acquired distinctiveness with the Applicants and this is also not the case. Here the Commissioner cited the Toto Zahav and ORT decisions. (The ORT case is about two philanthropic organizations each calling themselves ORT, based on their history, and is particularly relevant -MF).

The Applicant’s claim is really one of having the right to franchise the name to other service providers. This could be considered under Section 14, but in light of the other issues discussed is unlikely to be considered registerable under this either.

The Applicants claim is that their unique mandate as far as Habad activities in Israel are concerned, were bestowed by the Rebbe as the head of the movement. The problem is that Applicants themselves accept that from its founding in the 18th Century by Rabbi Schneur Zlaman of Liady, Chabad had six Rebbes prior to Rabbi Menachem Mendel Schneerson.

RebbeThere is no doubt that Rabbi Menachem Mendel Schneerson expanded the movement by an order of magnitude, but Chabad became a worldwide international movement prior to his reign and Chabad activity in the Holyland precedes 1951. With a 230 year history, not all of Chabad’s reputation can be ascribed to the Applicants.

During the hearing, the Applicants were referred to Haifa District Court Ruling No. 5969/04 Young Chabad Organization vs. The Tent of Menachem Lubavitch (in name of and under Presidency of the Lubavitcher Rebbe, the Holy Messianic King. That court found that:

There is no doubt that both parties are non-profit organizations of Chabad Hassidim. Te parties agree that there are many other non-profits established by Chabad. There are different non-profits since there are different shades of thought and intent among Chabad Hassidim.

Both the parties claim that the Rebbe of Lubavitch – who both sides follow – determined whilst he was alive and well, that they were the exclusive organization that would represent the Chabad Movement. The parties disagree but I cannot determine who takes precedence within the framework of this ruling. What I will say is that while the Applicant in this instance has shown that they were authorized by the Rebbe, they are not actively guided by the Rebbe and do not include the entire movement. COnsequently as far as this ruling is concerned, we are not dealing with arguments between branches of an inclusive organization with institutions that all members follow, but with different non=profits.. The significance of the distinction is that it undermines claims of sole representation of one body or another, such as a Rabbinic Court, and blurs its significance.

 In that ruling the Court refused to grant the plaintiff (who is one of Applicants in this instance) an injunction against the defendant using the names that are the basis of the present application.

From this ruling it is apparent that the Applicants DO NOT have sole discretion over the interests of the Chabad Movement in its widest sense and consequently do not sole rights over the terms Chabad or Lubavitch. for the range of goods and services requested. Despite the wealth of evidence submitted the Commissioner sees no reason to come to a different conclusion. The court ruling was from 2004 and the crates of evidence submitted in this instance do not provide a more up-to-date picture that indicates that the ranks have closed around the Applicants.

The Applicants further submitted that they enjoyed a unique status with the registrar of non-profit organizations and has the right to decide who could and could not use the terms Chabad and Lubavitch in their names. However, the Commissioner found that back in September 2011, the Registrar of non-profits stated “There appears to be a division in the Chabad Hassidic sect and the Applicant no longer represents all the variant streams within the sect”. 

The Applicant submitted lots of evidence to support their claims to the marks. However, much of the evidence is not dated although seems to be recent. It does seem that generally the term Chabad is used in conjunction with the full name of one or other Applicant, and sometimes with a graphic logo and the slogan “Wholeheartedly to All”. The Commissioner took this as evidence that the Applicants themselves felt the need to differentiate themselves from other Chabad entities, emphasizing that they didn’t or at least no longer had exclusivity to the terms.

The crates of evidence included contracts with emissaries who were enjoined to only use the term Chabad or Chabad House for certain activities and other activities were to be marketed under the Zeirei Chabad name. A letter from September 2005 stated that a certain Rabbi was responsible for Chabad activities on behalf of Zeirei Chabad in a certain community, and included a disclaimer that the organization (applicant 2) was not responsible for any communications or business transactions made in the name of Chabad. The Commissioner took this as evidence that the second Applicant differentiated itself from Chabad per se. and referred to itself by its full name. This undermines the Applicants claiming exclusivity to the term Chabad.

The Commissioner considered that even if the terms Chabad and Lubavitch could fairly be registered, it was not clear that the Applicants owned the marks. However, he was not convinced that the marks were registerable at all, and considered that the words alone were in the public domain and could be used by all.

In this regard, the Commissioner cited the Baal Hatanya Seligsohn  1973, page 22:

Marks that should stay available for trade are in a totally different category. Here one is not concerned with marks actually used in trade, but with marks that common sense or conscience obliges should remain non-monoplized and available to all.

 The Applicants allege that the marks are necessary to prevent third parties passing themselves off as Chabad without consent or supervision. Whilst it is true that the purpose of trademark registration is to prevent misleading the public (see 10959/05 Delta Lingerie, vs. Tea Board), in light of above, it is not clear that the concept of misleading is appropriate in this instance.

That as may be, misleading the public is only one consideration. Another is freedom of occupation and freedom of speech. As the Supreme Court stated in 941/05 Wine Makers of Rishon L’Zion and Zichron Yaakov Cooperative vs. the Vineyard Company LTD p.d. 61(3) 350:

The Ordinance (new version) is intended to protect registered trade names as possessions where a person or entity has acquired the reputation through usage. in addition to the mark holders rights, the ordinance protects the public in two ways: the first is that the public should not be mislead by non-approved usage of the mark, and the second is that the public should not be put out by over registration of terms used in trade that should remain in the public sphere.

The balancing of these conflicting rights requires careful consideration. In sections 8, 9, 11 and 12 of the Ordinance, the legislators defined marks that the upset the balance between the different interests and details marks that cannot be registered. the main section is Section 11 which lists 14 exceptions to what may be registered.

One of the exceptions is 11(5) that states: marks that damage or are likely to damage the public interest.

Since the UK has joined Europe, the term ‘public interest’ in UK trademark law has been interpreted as meaning ‘accepted principles of morality” and “public policy” and is applied to marks that may upset a sector of society on basis of race, gender, faith, and general issues of modesty and bad taste. See Kerly’s Law of Trade Marks and Trade Names, 15th edition, 2011, page 248. This explanation was adopted in the decision concerning Israel trademark no. 146483 “Lenoplast” from 2005. [I can’t follow the relevance of this section – MF].

Now the Commissioner draws an analogy to Christian Science. Note he does not actually compare Chabad to the Church of Christian Science, but rather compares the present Application with a trademark cases ruled by the Supreme Court of the State of New Jersey, concerning a movement established in the 19th Century, whose central institution requested to register the name.

Mary_Baker_Eddy

As we have pointed out, the religion of Christian Science was founded at least thirteen, and possibly twenty-three, years before establishment of the Mother Church, the organization now centered in Boston. Although the Boston organization has now co-existed with the Christian Science religion for close to a century, an understanding of this case requires recognition of two significant, related facts: first, the religion and the organization are conceptually separate; and second, the religion pre-existed the organization.

If in the late nineteenth century, in the early, formative stages of both the religion and the Mother Church, the founders of the Plainfield Church had chosen to practice the religion of Christian Science by following the religious teachings of Mary Baker Eddy, but had decided that their church should not become a member of the Mother Church organization, it is certain that there could have been no restraint on their use of the name “Christian Science Church.” In fact, not even Mrs. Eddy, founder of the religion and of the Mother Church, would have been empowered by law to prevent defendants’ use of the name “Christian Science Church,” provided that name were truthful (in the sense that it accurately referred to the religion practiced by defendants).” (Christian Science Bd. of Directors of First Church of Christ, Scientists v. Evans, 520 A.2d 1347, 1352-1354 (N.J. 1987).

In another instance, the Appeal board of the USPTO considered the term Seventh Day Aventist:

 “…because the Seventh-day Adventist religion pre-existed the formation of the Seventh-day Adventist Church (as the General Conference is often informally referred to), it is clear that these proceedings involve a designation which was inherently generic rather than one which initially was a valid mark” (Stocker v. Gen. Conference Corp. of Seventh-Day Adventists, 39 U.S.P.Q.2d 1385, 1996 WL 427638, at 30 (T.T.A.B. Apr. 25, 1994))

The Applicants do not claim that third parties using the terms Chabad and Lubavitch do not act in accordance with the belief system of the movement. The claim is rather that such third parties are not necessarily connected with them and Applicants do not have control over the actions of such third parties.The Commissioner does not consider that this type of deception is that which the Trademark Ordinance is designed to prevent. The opposite is true. The ordinance does not prevent free speech and does not prevent religious freedom. These are covered by section (5)11 of the Ordinance which rules that such marks are against the public interest.

Religious streams are not tradable entities. Laws for commercial campaigns are not applicable for religious movements. With reference to the wide range of goods and services for which registration of the marks was applied for, it should be noted that a religious movement is not a commercial enterprise and its purpose is not to provide consumer goods.

The commissioner was not swayed by arguments that defective mezuzot (ritual Amulets for affixing to door posts, containing ninlical verses (Deuteronomy 6:4-9 and 11:13-21) which discuss the obligation, could be sold under the Chabad brand, or that non-authorized speakers could appear at army bases, and did not feel that a trademark registration could prevent someone claiming allegiance to one sect or another.

In light of the wide dispersion of the Lubavitcher Rebbe’s teachings and the widespread usage of the term Chabad and Lubavitch by the public, the words are generic and should remain in the public domain. There is nothing submitted that justifies removing the names from the public and making them controllable brand names.

In light of the above, the Commissioner does not think that additional material or a further hearing will help Applicants. He rules that the applied for marks are not registerable and the Applications are denied.

Asa Kling, 22 May 2016

COMMENT

A non-profit organization acting in a commercial world should be entitled to use trademarks to protect its branding. Chabad’s activities are largely supported by public donations. The public should know that money donated to someone collecting on behalf of Chabad is collecting for the organization and that there is some central control on what the money is being used for.

Chabad does indeed provide education services, philanthropy and humanitarian services, including looking after Jewish youth (now older) from the Chernobyl region in an institute in Kfar Chabad who suffered radiation effects after the nuclear disaster. I have three Chabad cousins (that I get along well with so long as we don’t discuss theology or Ritual practice). One of them will only eat meat from animals that were ritually slaughtered by members of Chabad. There are various laws governing fruit and vegetables such as ritual tithes (now symbolic), restrictions on fruit from trees and vines during the first four years and in some instances, the clock is restarted where trees are transplanted. Chabad emissaries are noticeable due to their unique garb. Children’s clothing and toys may include images of kosher animals like ducks and cows, but some members are strict about not allowing their kids to wear or play with images or toys of teddy bears, kittens and other non-Kosher animals. I can’t see anything on the list of goods and services that goes beyond what the movement might be interested in selling under Chabad supervision or authorization.

The Commissioner has ruled that Chabad is a religious movement, and, as such, its purpose is not commercial vending. This does not reflect reality. Judaism in general, at least orthopractic varieties, which are mainstream in Israel, is a way of life and governs every day activities. Chabad certainly does not see itself as a religion in a theological sense, but rather as an all-encompassing way of life. There is, therefore, a fundamental difference between a church and a Hassidic sect, and the Christian Science ruling in the US is of limited relevance when discussing Chabad.

Whether or not the evidence submtted proves it or not, Chabad is less fragmented and more unified behind mainstream leaderships than it was in 1994. Those with strong Messianic beliefs seem to have toned their comments down. Actively viewing the Rebbe as Messiah and seeing his death as a temporary state prior to imminent resurrection is more difficult as time goes by and noone under the age of 25 remembers the Rebbe’s passing.  The real problem that mainstream Chabad faces, is the Messianic offshoots that are reminiscent of early Christianity or at least of Shabtai Zvi. A careful reading of the Seder haggadah seems to show Rabban Gamliel and others making statements as to what is and is not the Passover Sacrifice and teaching away both from Christian interpretation of the Last Supper, and from Rabbi Akiva’s support of the Bar Kochva Messianic rebellion against the Romans that proved futile. Certainly no longer a mass movement of improtance, there are still  small communities of Christians, Moslems and Jews in Turkey that consider shabtai Zvi to be the Messiah.

grumpy

It is difficult for me, as an outsider, to gage the extent that different types of Chabad followers, that I’d conveniently classify as Classic Chabad, Messianic Chabad and Chabad Lite each consider the previous Rebbe as actually being dead in the conventional sense, or alternatively as being in some positive limbo state as various legends, is Merlin, Jesus and Elijah.  I don’t know to what extent self-identifying Chabadniks consider the last Rebbe as the Messiah, or take note of the Maimonides discussion of Bar Kochba in the Laws of Kings, where he points out that since he died without rebuilding the Temple, it was clear that he wasn’t in fact the Messiah.

Rabbi Yosef Aharonov, the former head of Zeirei Chabad (one of the Applicants) is currently in an Israeli jail for pocketing 3.5 million shekels donated to Chabad. This may go a long way to explain the days in producing evidence, and also illustrates that the possibility of Chabad representatives engaging in activities that are beyond what the organizations rightfully consider acceptable is not beyond the realm of possibility and there does therefore seem to be justification for central control over who can use the term Chabad for fundraising and other purposes.

I assume that the Commissioner did not actually compare Chabad to the Church of New Science in any meaningful Theological or even socialogical way, but rather noted similarities regarding trademark disputes in a fragmented religious group.

These issues do not only affect Chabad of course.

In this spirit of comparative IP in religion, without drawing wider parrallels, I note that the Catholic Church has issued unique copyrights for the Papal figure. They want to control what is seen as official doctrine. Chabad no longer has a living Pope Rebbe who can issue guidance with Supreme authority, although this doesn’t seem to be preventing guidance from the Rebbe from being published as if he was alive – which may be the point for registration of the marks.

There was a power struggle in the Bobov dynasty which led to one faction submitting a range of marks to the USPTO. See here. it was argued the USPTO is not the correct court to decide who is the Rebbe and who is the pretender. Other Hassidic sects have split and fragmented. Vishnitz is a good example. There are different Vishnitz Rebbes in different towns. They all seem to be part of the same Hager clan but don’t have a Supreme Rebbe. I predict that at some stage, there will be a breakaway Satmar sect that will realize that in the light of subsequent history. Rabbi Yoel Teitelbaum was wrong. Already 25 years ago, I met a Satmar Chassid who was studying in Har Ezion, a Religious Zionist Hesder Yeshiva.

The commissioner is correct that once upon a time, many years ago, there was a Chabad organization led by previous Rebbes. However, this is not relevant. It does not affect current branding. There may have once been restaurants run by tartan wearing, bagpipe playing McDonald clansmen but that does not mean that now such a McDonald, opening a restaurant, should not have to face IP issues with the golden arched hamburger flippers.

Allowing the marks would not create a limitation on public usage of the name. It will merely provide some centralized control of what can legitimately be considered provided by Chabad and what cannot. It will mean that only someone selected by a committee can open a Chabad House and not anyone who likes the beards. I see this as a good thing. When in Orlando for INTA, I had a discussion with the Chabad Kashrut supervisor who had a problem with a restaurant in Orlando receiving Kashrut supervision from a Chicago Rabbinic court. I wondered if the issue was loss of protection money supervision revenue or a real problem with supervision. (The supevisors tales of rennet and pigs milk in non-supervised milk in America in the Sixties I take with a pinch of salt. I heard similar things from fundamentalist teachers in high school in the UK, and I assume that Rabbi Feinstein would have become aware of such issues and revised his ruling). In Israel, in addition to private Kashrut licenses, there is a state kashrut supervision and every restaurant calling itself Kosher has to have a certificate from the local, state authorized Rabbinic Council. I do not see a problem with Chabad as a movement wanting centralized control. Personally, I think they should appoint a Rebbe, but that is up to them.

Nowadays, no new Chabad emissary is being appointed by the Rebbe who has been inactive since 1991. There are new Chabad Houses being opened around the world, and I’ve visited them in different cities, including Cambridge, England, Rio de Janeiro, Shanzhen, Honk Kong, Shanghai, San Diego and Orlando. They each serve a slightly different purpose and different crowd. None of the Rabbis seemed as scholarly as Rav Shteinzaltz or the Late Rav Zevin. One was embarrassingly ignorant but  may, nevertheless, be providing Jewish services and serving a valuable purpose. Should anyone be able to open a Chabad House? If a dynamic and charismatic Chabad Rabbi writes books about Kosher Sex and becomes the spiritual leader of the late Michael Jackson, shouldn’t  the organization have the power to decide that he can not consider himself Chabad?

Autobiographical Footnote

Me? I do not have the temperament to be a Hassid. I benefitted from studying in a Talmudic college with two spiritual heads who were culturally very different, with different personalities and character traits. It taught me that noone has a monopoly on the truth and that Judaism is multifaceted. Whilst studying there, I used to travel to a nearby town to hear a third Rabbi who I still try to listen to before Pesach and Yom Kippur, and collect and read his books. I also enjoy the teachings of the previous UK Chief Rabbi and collect and read his books with great enjoyment. I never had one spiritual leader but seem to be at the liberal, intellectual end of the Orthodox spectrum. I admire Chabad’s outreach work immensely but find their philosophy less than unattractive. I don’t have the temperament to be a Hassid.


Shabbat Afternoon, Ethics and human genome patenting and the future of life form patenting

September 10, 2015

Gene_Patent_Cartoon_Cathy_Wilcox1

The afternoon session was titled “Ethics and Human Genome Patenting” and were Chaired Professor Robert K. Vischer, Dean and Mengler Chair in Law at the University of St. Thomas School of Law in Minnesota. Lectures included:

  • Public trust doctrine applied to gene patents – Professor Brian Scarnecchia, Ave Maria School of Law, Franciscan University of Steubenville
  • The theological case against privatising the human genome – Professor David Albert Jones, Director of the Anscombe Bioethics Centre, Oxford
  • Human genome and copyright: an ethical alternative to patents? – Mark Engelman, Barrister and Head of IP at Hardwicke Chambers, Lincoln’s Inn; Master of the Bench, Gray’s Inn; Von Hügel Institute Research Associate and a former Hasmo boy, came up with the thought provoking and brilliant suggestion that rather than considering them an invention and awarding patents for gene sequences, the correct tool for protecting them, either as a creation or, like database contents or telephone directories, reflecting the effort, is as copyright.

gene patent

After yet more tea and coffee, there was a roundtable called the future of life form patenting which was Chaired by a presbytarian, Dr Calum MacKellar, Director of Research at the Scottish Council on Human Bioethics.
Contributors included:

  • Professor Geoff Hunt, Director, Centre for Bioethics and Emerging Technologies, St Mary’s University, Twickenham (reflecting on the ethics of nano bio-medicine patenting)
  • Martin Gouldstone, Head of Lifesciences Advisory, BDO (reflecting on industry concerns over gene patenting) and
  • Dr Thana Campos, Von Hügel Institute Research Associate (speaking on ‘the idea of patents vs. the idea of the university’).

Dr Campos’ claimed that patenting interfered with academic publishing and cost the university money rather than raised funds. Unfortunately, she did not substantiate her statements with any statistics or hard evidence. I found it contrary to what I knew to be the case with the Israel university tech transfer companies and suspect that if there are problems, it is due to poor management rather than intrinsic to the system. Sure, the tech transfer model can be criticized as leading to applied rather than basic research, but as not infrequently I turn academic papers into provisional patent applications whilst the paper is at the galley proof stage, I do not believe that patenting restricts or delays publication.

There was another little drinks session to finish off the conference. I reflected that what passed as orange juice in the UK seemed to be the second washings after pasteurization and would probably not be considered drinkable in Israel.

chabad Cambridge

Walking back from synagogue earlier that day, I passed the Chabad House of Cambridge. Chabad is a kind of salvation Army type of Jewish missionary cult aimed at disenfranchised Jews. The Chabad House was less than five minutes walk from Murray Edwards and after the conference, I popped over there until nightfall where I prayed and studied a little. It turned out that the Rabbi’s wife was the daughter of a former geography teacher at Hasmonean, the London high school I’d attended. I see Shabbat as a family time, and it was nice watching her kids playing together. She and the Rabbi had recently reproduced again, and I very much enjoyed holding and playing with her four month baby.

Luton Airport

I took a national express coach from Cambridge to Luton Airport. Luton is like Lublijani Airport in Slovenia. It is tiny. Nevertheless, in one of the restaurants, there were Kosher sandwiches and salads from DDs.

Hoeward Bound

Things are ever stricter regarding security. Now, apparently, one is not allowed to have 100 ml of fluid in one’s bladder. The woman in front of me had on an underwired brassiere which triggered the metal detector. The ELAL breakfast consisted of a rubbery omelet and yoghurt. Nevermind, I was Homeward Bound.


Shabbat Morning

September 10, 2015

Thompson Lane
It was a close call whether to pray quickly and attend the morning lectures or to go to Synagogue. With Rosh Hashana around the corner, and knowing that my hosts would be understanding, religion won.

The Cambridge synagogue was familiar to me from my student days, where, although I studied at Imperial, I did have friends in Cambridge and spent a few Shabbatot (Sabbaths) there. The synagogue in Thompson Lane is non-affiliated Orthodox. There is gender separation, but the symbolic divide runs front to back, so women and men sit in a segregated but egalitarian arrangement. The dividing screens are also solid to waste height and above that, are merely a framework. In a pleasant break with tradition, the 1-12 year old girls opened the holy Ark. Apparently, in the college holidays, it’s usually the kids that open the ark, and the boys were outside playing something. Anyone can open the Ark and the honour is frequently given to non-Jewish visiting dignitaries. Nevertheless, it seemed to me to be sensible and refreshing to give the ladies something to do.

An Israeli mathematician, Dr Yoav Gitt, read the weekly Torah portion. When I’d last visited, as a student in the early nineties, Yoav, then a student, was the regular reader, and it seems that he’s been in demand ever since.

Israel Patent Attorney, Standford T Colb donated a Sefer Torah to the Cambridge Synagogue in Honour of his father. Apparently both he and his son had spent happy semesters there.

Due to the Synagogue visit, I missed the session on Patents and life forms that was chaired by Professor Simon Lee, Fellow of St Edmund’s College, Cambridge and executive director of the Cambridge Theological Federation and which included the following lectures:

  • Patenting on life forms/judgments of the Boards of Appeal of the European Patent Office – Christopher Rennie-Smith, Former Chair of the Biotech Board of Appeal and former Member of the Enlarged Board of Appeal at the European Patent Office
  • Legal and ethical aspects of the patenting of human body materials – Dr Julian Cockbain, European Patent Lawyer, author, consultant and bioethics expert
  • Patents and the moral limits of markets: The case of germ line interventions – Dr Katerina Sideri, Intellectual Property advisor, Agricultural University of Athens; and Member of the International Scholars Network of Intellectual Property in the Biosciences

I also missed most of the second session, titled Patents, human rights and politics

Chair: Professor Elizabeth Schiltz, Professor of Law, Thomas J. Abood Research Scholar and Co-Director of the Terrence J. Murphy Institute at the University of St Thomas in Minnesota

  • Patent governance, ethics, and democracy – Professor Ingrid Schneider, Department of Political Sciences, University of Hamburg, Research Centre for Biotechnology, Society and the Environment
  • Human Rights and Life Patents: Lessons from the Church’s Social Teaching and Engagement – Dr Stephen Colecchi, Director of the Office of International Justice and Peace of the United States Conference of Catholic Bishops
  • Patents on Embryonic Stem Cells: On Moral Intrigue at the European Patent Office – Dr Justin Turner QC, Barrister at Three New Square chambers, Lincoln’s Inn; Director of UKAD

For lunch I had fried fish, mashed potato and spinach again.  After my parents retired, they immigrated to Netanya, which is a Mediterranean Bournemouth on Sea. They’ve found a Synagogue called Young Israel, with an average age of congregant being about 70, and where most members are British retirees. Nothing Young and nothing Israel about it. They’ve got used to the local diet and one can find things like Marmite, English teabags, etc. if one is willing to pay a premium. What one cannot get in Israel is fresh North sea fish suitable for frying. I had fish & chips at a Hendon restaurant on the Wednesday, and two Hermolis meals in Cambridge on Shabbat. That’s three lots of haddock. It’s true, there is nothing like British fried fish. Funnily enough, Mrs Beaton describes it as fish in the Jewish tradition, and apparently it arrived with Portuguese Jewish immigrants in Cromwell’s time.