Israeli Court Requires Near Certainty for Destruction of Evidence to Issue and Anton Piller Order

Posted on February 8, 2012 by Jonathan Agmon

On November 27, 2011 the Magistrates Court in Tel-Aviv issued its decision in Efrat v. Cafe “La Gufra” regarding a request to cancel an “Anton Piller” search and seizure warrant that was granted before the main lawsuit in the case was filed.

The Plaintiffs are the parents of Chen Efrat, a woman who passed away as a result of a severe allergic reaction to nuts served to her inside a desert at the defendant’s restaurant. The plaintiffs argued, that the waitress clearly said that the dessert was without nut ingredients. It turned out that the desert contained a chocolate spread based on walnuts.

The Plaintiffs asked and received an “Anton Piller” warrant to seize the Respondent’s computer hardware, including the existing camera films taken in the defendant’s restaurant, as well as, staff names who worked that evening and all documentation relating to supply orders on the relevant dates.

The Respondents argued against the warrant saying that the request did not meet the requirements established in previous rulings of the court. Furthermore, the attorney appointed to seize and hold the assets under the Anton Piller order exceeded his authority when he conveyed the assets to a third party, by doing so he violated his duty for confidentiality. Nevertheless, no proof was shown to indicate a basis for real concern that those assets will be discarded or destroyed.

The court accepted the motion for cancellation of the issued Anton Piller order and stated that it was not proven at the required level of “near certainty” that there is a real concern regarding the defendant’s intention to discard or destroy the evidence. Moreover, such concern cannot be attributed to those who did not commit a criminal offense and the sole accusation ascribed to them is negligence. The Court added, that as a rule, it is not possible to use the “Anton Piller” order while filing a lawsuit based on the “Torts Ordinance” especially when negligence is to be considered. This decision is contrary to many previous decisions where an Anton Piller order were issued for tortious causes of action. 

The court goes on to base his decision on the following considerations:

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Israeli Patent Law Amendment No. 9 is Published – PCT related

Posted on January 17, 2012 by Jonathan Agmon

Amendment No. 9 to the Israeli Patent Law, regulates the new functions of the Israeli Patent Authority as an International Patent Authority for the PCT, capable of searching and examining patents under the PCT – Patent  Cooperation Treaty.

Amendment No. 9 was due to take effect within 30 days from the day it was published (December 8, 2011).  However, the Minister of Justice can postpone the effective date order, and according to the Israeli Patent Authority’s website the revision has not yet come into effect and a notice of which should be published in the future.

With the entry into effect of this revision, the Israeli Patent Authority should complete the preparations needed and it is expected to start its activity in the first half of 2012 as a PCT searching and examination office.

The following issues are included in Amendment No. 9:

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Our Blog 2011 Report

Posted on January 11, 2012 by Jonathan Agmon

See our blog 2011 Report

http://jetpack.me/annual-report/24927989/2011/

 

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Slogans Can be Registered as Trademarks in Israel

Posted on January 7, 2012 by Jonathan Agmon

On December 8, 2011 the District Court of Tel Aviv handed down its decision in an appeal filed by Everyday Battery Company against the Patent Registrar. The District Court refused to allow the registration of the mark FREE YOUR SKIN for shaving products because it was laudatory. The District court did state that a slogan is registerable if it has secondary meaning and is not laudatory or descriptive.

The applications to register the mark FREE YOUR SKIN, serial nos. 204832 in class 3 for shaving products and 204499 in class 10 for razors for shaving, were refused by the Patent Authority since it was a laudatory slogan which was not designed to transfer to the public a message as opposed to a mark which is designed to associate a product to its source. Such mark the Patent Authority stated lacked secondary meaning. The Patent Authority relied on the decision in Re Application to Register Marks No. 171187 – 171183 DO WHAT FEELS GOOD, where the Patent Authority stated that a slogan will only be registrable when the slogan acquired secondary meaning as a result of use; the slogan associates in the mind of the consumer between the product and its source and has the ability to distinguish between the product at hand and other products; and the public must associate between the slogan and the source of the goods even without the mark associated with the product (where they are used together). In addition, the Patent Authority relied on its own Circular M.N No. 29 embodying the above test and stating that if the mark is used with the slogan the entire mark will be reviewed, but a disclaimer as to the slogan will be required. Thus, the refusal was based on two main principals, the first that the slogan by itself without the mark used on the product are laudatory and is therefore unregisterable in accordance with section 10(1) to the Trademark Ordinance, and that the meaning of the slogan will not, of itself, enable the public to identify the source of the goods.

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Israeli Patent Registrar sets New Rules for Extensions of Time in Patent Cases

Posted on December 24, 2011 by Jonathan Agmon

For many years, the Israeli Patent Office had an incredibly lax approach to extensions in patent prosecution. Patent Registrar Circular 5/2011 changes this approach and sets a new policy for granting extensions of time in patent cases.

Deficiencies Notices Extensions
Rules 30 and 31 of the Patent Rules (Patent Office Rules, Procedure and Fees), 1968, state that an applicant must correct any deficiencies in the form of the patent application within 3 month from a notice issued to him. Section 164 of the Patents Act, 1967 allows the Patent Registrar to extend this period of time. Circular 5/2011 sets this time limit at 6 months. Therefore, the time extension given to amending deficiencies of form will now be limited to a total of 9 months (3 months under Rules 30 and 31 and 6 months under Section 164 and Circular 5/2011). 20111224-034506.jpg

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Protection of Trade Secrets in Civil Proceedings in Israel

Posted on November 28, 2011 by Jonathan Agmon

In a recent decision (Oppositions to Register Trademarks Nos. 222,501 and 226,634 MOOI SWEET WONDERS (logo) and MOOI, Mewah Brands (S) Pte Ltd. v. Danshar Ltd., 16 November 2011) the Israeli Patent Office discussed in brief how to protect trade secrets under the Israeli Civil Procedure Rules. The Opposer filed a motion for an order to protect trade secrets in the evidence it filed with the Patent Office. The Opposer moved the Patent Office to issue a gag order the deposit of the evidence in the Patent Office safe. The Opposer also moved the Patent Office to prevent review of the evidence by the opposing party. The motion referred to information about the sales of the Opposer. The Patent Office accepted the motion in part. Continue reading →

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Evidence Required to Be Translated to Hebrew

Posted on November 21, 2011 by Jonathan Agmon

In a recent decision issued by the Israeli Patent Office in Opposition to Register Trademark No. 222,275 Merk KGaA v. Jonathan Shrieber, Merk was required to furnish a translation to Hebrew of its evidence to the Owner of the Application (Shriber). Shriber, the sole owner of Anderson Medical Ltd. asked for the translation and the Patent Office granted the motion. Merk moved to cancel the decision based on the fact that Anderson Medical web site was in English and therefore it was reasonable to assume Shriber was fluent in English. The Patent Office disagreed.

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Search and Seizure Questions Redefined

Posted on November 18, 2011 by Jonathan Agmon

On November 3, 2011, the Israel State Employment Tribunal handed down its decision in Zuko Marketing and Distribution Ltd. (Zuko) et. al. v. Haim (Cherry) Bakush et. al. The case involved two appeals on search and seizure operations by Zuko’s attorneys. Zuko runs a heavy machinery and engineering business. Cherry was a senior employee of Zuko for over 20 years and when he resigned Cherry undertook to maintain in confidence the trade secrets of Zuko. Cherry was well compensated in his retirement agreement. Shortly after his retirement in 2006, Cherry began to compete with Zuko. Zuko argued Cherry was making use of proprietary software and database it developed over dozens of years. Zuko further argued the software and database were not available on the market and contained its trade secrets.  Zuko learned of Cherry’s actions in 2009 and in March 2010 filed a motion for preliminary injunction and search and seizure. The District Employment Court rejected the motion based on laches. On appeal the State Employment Court reversed and granted the motion based on the fact that the motion was for the seizure of evidence. Moreover, already in this appeal the court found Zuko had trade secrets.

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What Law Applies to Relationship Between Copyright Joint Owners

Posted on October 7, 2011 by Jonathan Agmon

On 19th of September 2011, the Central Distircit Court issued its decision in Kabali v. Reches Publishing Educational Projects Ltd. The court discussed what was the law to be applied on a relationship between joint owners in a copyrightable work - Kabali, the Plaintiff, the author of grammer books, and Reches, the defendant, a publishing house to which half the copyright in Kabali’s works. Kabali argued Reches infringed on her copyrights and Reches argued there was no copyright infringement rather a contractual dispute between the parties.The court found that the parties were indeed joint owners of the copyright in Kabali’s works.

Kabali's grammer book published by Reches

The defendants argued that joint owners in copyright cannot, by definition, infringe the copyright in the work. The plaintiff thought they could. The court…

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Privacy at the Work Place – Restrictions on Employer’s Rights to Monitor or Track Employee’s Mailbox

Posted on September 3, 2011 by EhudChaushu

On February 8th, the Israeli National Labor Court (Jerusalem) issued its decision in Tali Izakov. v. The State of Israel relating to an employee’s right to privacy and the employer’s to track and monitor his employees E-mail correspondences.

The court found that the employee’s right to privacy is not absolute but will not be infringed without proper prior actions on behalf of an employer seeking to track and monitor the employee’s mail correspondence. The proper steps vary in accordance with the mailbox type. In a strictly work related mailbox the proper steps for monitoring and tracking the correspondence are the mildest, stricter steps required in the mixed mail box and for an outer and private mailbox a request for monitoring or tracking any correspondence must be requested from the court.

Pandora's Box by J.W. Waterhouse

 

In its decision the court laid down the rules that ought to be applied by an employer and an employee regarding the use of computers at work. Including the employer’s penetration to employees Mailboxes and the presentation of prints generated from those E-mail correspondences, as evidence in a legal proceeding.

The court held that the principal of privacy in the virtual sphere is the same as in the actual one. The employee hold the right to track and monitor his employees E-mail correspondences and the Employee has the right to privacy in these Mailboxes.

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