ISRAEL Law and Practice Contributed by: Ronit Barzik-Soffer, Luiz Blanc and Rakefet Peled, Reinhold Cohn Group
9.3 Exhaustion The parallel importation of genuine goods to Israel does not constitute trade mark infringe - ment. 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 violation” 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. In actions for copyright and trade mark infringe - ments, the plaintiff is entitled to receive injunc - tive relief, either interim or preliminary. 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 guaran - tee as instructed by the court. The court will grant the requested relief if it is convinced, on the basis of sufficient prima facie, evidence, of the existence of a justifiable cause of action, and of the necessity of the tempo - rary relief in order to achieve the purpose of the 10. Remedies 10.1 Injunctive Remedies
claim. Courts consider, inter alia, the balance of rights, namely, the damage that may be caused if the temporary relief is not granted, compared to the damage that may be caused if the tem - porary 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 assessments. 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 damages, 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 infringe - ment cases. Calculating Damages in Copyright Infringement The owner of rights may apply for actual damag - es (including loss of profits) or for statutory dam - ages. According to the Copyright Act, when an infringement is conducted, the court may award the plaintiff, with respect to each infringement, damages without proof of actual damage, in an amount not exceeding ILS100,000. In award - ing damages, the court may take into account, among other things, the scope of the infringe -
232 CHAMBERS.COM
Powered by FlippingBook