ISRAEL Law and Practice Contributed by: Ronit Barzik-Soffer, Luiz Blanc and Rakefet Peled, Reinhold Cohn Group
Copyright Infringement When deliberating whether an act amounts to infringement of copyright the following param - eters, established by the Act, should be con - sidered. For a work to benefit from the protection of the Act: • the work should be original and fixed in any form; • the work should not be an idea or procedure and method of operation; or mathematical concepts or facts or data; or news of the day; and • the work should not be a “design” as defined in the Patents and Designs Ordinance, unless the design is not used, or intended to be used, in industrial manufacture. Did the infringer violate the exclusive right of the owner to use the work, or a substantial part thereof, for purposes allocated exclusively to the owner of the copyright under the Act? Are the acts in question included in the “permit - ted uses” as defined in the Copyright Act? 7.4 Prerequisites and Restrictions to Filing a Lawsuit There are no prerequisites for filing a trade mark or copyright lawsuit. However, while there is no formal requirement to send a warning letter before submitting the lawsuit, it is recommended practice to do so. 7.5 Lawsuit Procedure The magistrate and district courts have jurisdic - tion over trade mark and copyright infringement claims. A claim for compensation in an amount below ILS2.5 million and/or injunctive relief in an amount equal to or below ILS2.5 million, will be
derogatory use, where such act would be preju - dicial 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 similarity 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 distinctive. The definition of trade mark infringement in the Trademark Ordinance does not imply the con - dition of consumer 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’ propri - etary rights. Accordingly, even if actual confu - sion 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 nor - mally considered a determining factor to estab - lish infringement.
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