ISRAEL Law and Practice Contributed by: Ronit Barzik-Soffer, Luiz Blanc and Rakefet Peled, Reinhold Cohn Group
The plaintiff is entitled to receive temporary injunctive relief if it proves the legal right and if the balance of convenience is favourable. In order to receive such relief, the plaintiff should deposit a self-guarantee and additional guarantee as instructed by the court. The court will grant the requested relief if it is con - vinced, on the basis of sufficient prima facie evidence, of the existence of a justifiable cause of action, and of the necessity of the temporary relief in order to achieve the purpose of the claim. Courts consider, inter alia, the balance of rights, namely, the damage that may be caused if the temporary relief is not grant - ed, compared to the damage that may be caused if the temporary relief is granted; whether there is no other remedy with lesser impact on the respondent; and the good faith of the parties. The court may also order the destruction of infringing goods as part of the final relief granted. 10.2 Monetary Remedies Calculating Damages in Trade Mark Infringement In trade mark infringement cases, the damages awarded to a trade mark registration owner may be calculated according to the damages caused, or to the profits gained, by the defendant. The complexity to prove and calculate the exact damages has led the courts to stipulate sums through approximate assess - ments. The list of relevant factors when determining the sums awarded is open and includes the scope, nature and duration of the infringement, the proof of actual dam - ages, the intention and bad faith of the infringer, the actual confusion, the relevant industry, the impact on the market and the public interest in preventing future infringement cases. Calculating Damages in Copyright Infringement The owner of rights may apply for actual damages (including loss of profits) or for statutory damages. According to the Copyright Act, when an infringe - ment is conducted, the court may award the plaintiff, with respect to each infringement, damages without proof of actual damage, in an amount not exceed - ing ILS100,000. In awarding damages, the court may take into account, among other things, the scope of
the infringement; the duration of it; the severity of it; the actual damage caused; the benefit derived by the defendant from the infringement and the charac - teristics of the defendant’s activity; the nature of the relationship between the parties and the good faith of the defendant. The Act further stipulates that for the purpose of granting statutory damages, infringements carried out as part of a set of activities will be deemed Since most of the time it is difficult to prove actual damages, it is common to apply for statutory dam - ages. The Act states that statutory damages will not apply to a person who has made available to the public on the internet an artistic work that was previously made available to the public, provided that: a single infringement. Statutory Damages • the infringer ceases the infringement within a rea - sonable time after receiving notice from the owner; • the work was not copied from a catalogue; and • the use was not for commercial purpose. In addition, the statutory compensation clause does not apply to non-profit institutions and similar institu - tions, and does not apply to educational institutions or libraries that use the materials as part of their usual activities, and not for commercial purposes. 10.3 Attorneys’ Fees and Costs The losing party is obliged to pay the other party’s attorney’s fees and costs awarded by the court. However, in practice, the courts do not usually order the real fees and costs, and use their discretion to decide according to several circumstances. 10.4 Ex Parte Relief Copyright and trade mark owners may seek ex parte relief without notice to the defendant in cases where there is a reasonable fear that giving notice to the defendant will circumvent the purpose of the tempo - rary relief or cause serious damage to the applicant (usually when there is a reason to believe that the infringer will destroy evidence).
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