ISRAEL Law and Practice Contributed by: Ronit Barzik-Soffer, Luiz Blanc and Rakefet Peled, Reinhold Cohn Group
mark, and particularly the recognition of the mark in public circles, and the extent to which it is known as a result of its marketing. Dilution and other infringements Besides the regular claims concerning trade mark infringement, the owner of a well-known trade mark may also claim infringement based on the dilution doctrine. Dilution by blurring is recognised by Israeli courts in cases where the use of a mark adversely affects the distinctive character and scope of protec - tion of a well-known mark, distorting the strength of the rights acquired by the owner of the well-known mark. Other types of trade mark infringement, including but not limited to dilution by tarnishment and contribu - tory infringement, are likely to be recognised by Israeli courts, which are open to adopting doctrines accept - ed by foreign laws and jurisdictions. Copyright Infringement The main legal claims regarding copyright infringe - ment are violation of the exclusive right of the owner to use its work, or a substantial part thereof, without the permission of the owner, for: • reproduction of the work; • publication of the work (with respect to a work not yet published); • public performance of the work; • broadcasting; • making the work available to others; or • making a derivative work. Direct and indirect infringement The copyright infringement may be direct infringement or indirect infringement. Indirect infringement occurs when a person knew, or should have known, that a copy of the work is an infringing copy in cases of: • selling or letting for rental; • possessing an infringing copy for a commercial purpose; • distributing an infringing copy on a commercial scale;
• exhibiting an infringing copy to the public in a com - mercial manner; and • importing an infringing copy into Israel, not for personal use. Infringement of a moral right In addition, it may be argued that there has been infringement of a moral right if someone does not attribute a work to its author, or if the work is distorted or modified or undergoes any other derogatory use, where such act would be prejudicial to the author’s honour or reputation. Collective rights management Collective rights management is established in Israel under the Commercial Competition Law and not under copyright. 7.3 Factors in Determining Infringement Trade Mark Infringement To establish trade mark infringement, the trade marks are compared considering their overall impression. The threefold test stipulated by the Israeli Supreme Court, is to compare the visual and phonetic similar - ity between the marks, the similarity of the goods, the circle of customers, the channels of distribution, as well as other case circumstances, including the conceptual similarities between the marks based on the general idea behind them. The scope of protection afforded to a mark depends on its inherent distinctiveness. The protection afforded to suggestive trade marks is likely to be substantially lower than to trade marks which are inherently dis - tinctive. The definition of trade mark infringement in the Trade - mark Ordinance does not imply the condition of con - sumer confusion as an element of the tort. However, case law determines that the two main goals of trade mark laws are the protection of consumers and of owners’ proprietary rights. Accordingly, even if actual confusion is not an intrinsic element of the tort and trade mark infringement is determined also in the absence of consumer confusion, the actual confusion between the compared marks is normally considered a determining factor to establish infringement.
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