ISRAEL Law and Practice Contributed by: Ronit Barzik-Soffer, Luiz Blanc and Rakefet Peled, Reinhold Cohn Group
infringement as long as it is in good faith and only necessary to identify the user. The use of a trade mark merely for providing a true description of the character or quality of the goods is permitted if the following conditions are met: • it is burdensome to identify the goods without using the mark and the use is necessary for identi - fication; • the use is reasonable and no more than is neces - sary to identify the goods; and/or • the use does not create the impression of commer - cial sponsorship. While unauthorised use of a registered trade mark for advertising constitutes infringement, it was deter - mined by the Supreme Court that truthful comparative advertising serves the principle of free speech when it presents accurate facts about products or services, and it may be permitted if the use of the mark is strictly informative. The Copyright Act recognises the fair use excep - tion. Fair use of a work for certain purposes will be considered as use of the work that does not require the permission of the copyright owner. Section 19 lists examples of purposes that may be considered “fair”, such as private study, research, criticism, news reporting, quotations, instruction and examination by an educational institution. Section 19 also provides the parameters that should be considered in respect of the scope of “fairness” of use: • the purpose and character of the way the work has been used; • the character of the work used; • the scope of the use in relation to the work in its entirety; and • the impact of the use on the value of the work and its potential market. In addition, the Act includes “specific permitted uses” such as the use of works in legal or administrative proceedings; the use of works that are publicly acces - sible; the broadcasting or reproduction of works which are situated in public places; and temporary copying of computer programs for back-up.
Regarding “parody” – court cases recognise “parody” as falling under the allowed use of “criticism”, as long as the use can be considered “fair”. For example, in specific circumstances, use of a work in a parody advertisement was considered “fair use”. According to courts cases, the balance between free - dom of speech/expression and copyright is assessed within the framework of the fair use exception. The defendant may also claim that they are an “inno - cent infringer”. According to the Act, where a copy - right has been infringed, but the infringer did not know, or could not have known, at the time of the infringement, that copyright subsisted in the work, the infringer will not be obliged to pay compensation in respect of said infringement. A mistake regarding the question of “who” is the rightful owner of the copyright does not establish this defence. 9.3 Exhaustion The parallel importation of genuine goods to Israel does not constitute trade mark infringement. The owner of a trade mark registration in Israel exhausts its rights in the mark upon the first sale of the goods anywhere in the world. Israeli law adopted the copyright exhaustion doctrine based on the interpretation of the term “indirect vio - lation” under the Copyright Act, which requires the performance of an action on an “infringing copy”. An “infringing copy” is defined under the Act as “a copy made in Israel without the permission of the copyright holder”. In addition, the copyright exhaustion doctrine is based on case law. There is no specific content related to digital content.
10. Remedies 10.1 Injunctive Remedies
In actions for copyright and trade mark infringements, the plaintiff is entitled to receive injunctive relief, either interim or preliminary.
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