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RAMALLAH – On 18 November 2018, the General Directorate of Intellectual Property in the Ministry of National Economy of the Palestinian Authority (which sometimes calls itself the State of Palestine) has announced that new trademark applications may now be filed online through its website.

According to the Registrar, the new online filing system went live on 13 November 2018. However, it is not fully operational and it is unclear how various transactions will be handled.

COMMENT

The Fatah controlled Palestinian Autonomy on the West Bank does not have effective control over the Hamas controlled Gaza Strip. Marks need to be separately registered with each. There is no class for alcoholic beverages in the Gazan Strip. Stores in Jewish communities of the West Bank (Judea & Summaria) are effectively under Israel Law.

In the past, we’ve represented Israeli clients against Gazan importers of fraudulent construction goods bearing the trademarks of the Israeli clients. These could find their way into Israeli construction projects, and may well not meet the required specifications.

Trademark enforcement in this area is a little complicated.

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Ron Guata submitted a play called Edmonton to a new talent competition organized by Beit Lissin in 2010.  Hillel Mittelpunkt, a playwright associated with Bet Lissin, launched a play called Maxi & Me. Both deal with real-estate issues and Guata sued Mittelpunkt and Bet Lissin for a million shekels for copyright infringement. In 2017, the District Court dismissed the charges (Civil Ruling 61624-12-13) and ruled 30,000 NIS costs to Mittelpunkt and a further 13000 Shekels in damages to Mittelpunkt’s reputation.

Both parties appealed. Guata claiming that court submissions could not be slander, and that there was copyright infringement, and Mittelpunkt appealed the low damages and legal fees.

The Appeal was partially accepted and the counter appeal was rejected.

Judge Hendel ruled that ideas per se are not copyright protectable. Copyright only protects the expression of the idea.  There is, however, no clear demarcation between the idea and its expression. In our world, all ideas come in some kind of dressing. So the question is one of the similarity between the creations is one of both the simplified idea and of the elements used to implement the idea. Intermediate cases can raise difficult issues, and various tests may be required to ascertain if only the basic idea was lifted, or also elements of its expression. There are, however, also clear examples where all the tests lead to the same result. Sometimes the similarity between creations is in detailed and deep aspects. In other instances – and this is the case before us – There is no need for certain tests to prove that there is no real similarity between two creations, but merely a certain closeness in the ideas.

As a matter of legal policy it is not fitting for the court to be overly involved in nuances of the type raised by the Appellant. The Court of First Instance examined he issues carefully and detailed its conclusions, and its findings are accepted by the Supreme Court. The Appellant’s play does not close the door against other shows of the type written by the respondent and the case is not one of copyright infringement.

As to the charge of slander, disclosures made in the context of a legal proceeding may not serve as the basis of a tort for slander. The protection against being sued covers all stages of the legal proceeding, including preliminary steps such as Cease & Desist letters. In this instance, there wasn’t a formal Cease & Desist, but examination of the letters show that they were preliminary shots fired in this legal proceeding.

Since the preliminary letters are not formal legal submissions, their status regarding libel charges must be considered on a case specific basis. There is relevance in such questions of how many warning letters were sent, their content and the addressee. Here there were three letters, and they were sent to central figures in the theatre. They were to the point and laid out a factual argument that was later raised in the Statement of Case.  In these circumstances, the letters should be seen as part of the legal process as understood widely. To understand otherwise would limit access to the courts to settle legal disagreements.   This does not mean that insulting and slighting publications are allowed, so long as a civil tort is subsequently filed.

Appeal 7517/17 Guata vs. Mittelpunkt Ruling by Justice Hendel, with Justices Barak Erez and Kara concurrence, 11 November 2018

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Last night I attended an event in that was focused on the establishment of a High Tech Hub in the Binyamin region which is just North of Jerusalem.

As in other areas of the country, there seems to be a feeling that if there is office space available that is constructed on a “We Work” type model, with conference rooms, sofa and coffee table informal meeting space, and high chairs at a bar, preferably with a stair case in the middle just for show, then the dynamic modern high-tech environment will generate commercial success.

There was a panel of experts, including mentors, a representative from the ‘Our Crowd’ crowd funding venture capital fund,  a representative of government funding for small businesses and various entrepreneurs of varying degrees of success.

One of the esteemed speakers explained the importance of discussing your idea and not being afraid of someone stealing it, and if they do steal it, so what? Most people have more than one idea. This same erudite presenter went on to note that when talking to venture capital firms like that represented by the honorable expert next to him, don’t expect them to sign an NDA.

After the presentations, there was an opportunity for feedback. Introducing myself as a patent attorney, I noted that if one is going to discuss one’s inventions and ideas without an NDA, one should be aware that unless one first files a patent, one cannot subsequently protect the idea. This means that if you set up a team and some disgruntled employees leave and set up a competing entity, there is nothing you can do to stop them. It also means that if you develop and sell a product for a price delta above the manufacturing costs, anybody can compete and sell at a lower price. Not bearing the R&D costs and possibly having lower labour costs, such as if they manufacture in China, they will be able to undercut the price and erode profits.

Sometimes it is possible to argue that certain disclosures are made under conditions of implied confidentiality and the lack of a formal NDA may not be insurmountable obstacle. Pitching to a Crowd Funding organization seems to me to be the type of disclosure that most judges would find difficult to accept a construed confidentiality. In the words of Samuel Goldwyn, a verbal agreement is not worth the paper it’s written on.

I didn’t think I was suggesting anything controversial. Indeed, I think that was I was saying was self-evident, and that experienced entrepreneurs and investors would agree. Instead, the 8 or 9 experts derided patent filing and protection. It was expensive. Very few patents get litigated, and those that do tend to be from universities. The tool was not appropriate for start-up entrepreneurs. One self-styled expert said that maybe there was room to write  a provisional application oneself and to file it with the USPTO for $10.

I am not a major fan of provisional applications, but agree that they have their place. Under certain circumstances, a do-it-yourself job may be acceptable. However the cost of filing them is $140, which made me wonder how up to date, the expert was in his strongly held opinions.  A patent application is a legal document. Whereas a provisional application may not need claims, it does need an enabling disclosure of the invention if it is to serve as the priority document for an examined application.  I have come across inventors who have competently documented their invention in a way suitable or filing as a US provisional application, but they are few and far between. Sometimes only a couple of hours is required to strengthen the document.  No one is obliged to take professional legal counsel. One can obtain will forms on the Internet, and can represent oneself in court.  Is it a good idea? – Generally not.

One of the panelists noted ruefully that some of the government funding initiatives earmarks a percentage of the funding for protecting intellectual property. He clearly saw this as a mistake. I, however, am delighted that someone in a position of importance in the public sector funding has more sense.

I note that none of the experts on the panel answered either of my questions:

  1. Without a local Israel patent, how does one prevent employees leaving the company and setting up in competition?
  2. If one is successful, how does one prevent established players from copying the product without IP?

Now there is an alternative to registering property rights, which is trade-secrets. However, one has to take extraordinary care to protect these for courts to uphold trade-secret rights.

The event was held in the Psagot Winery Visitor Center. A winery is an example of a business that needs trademarks for branding purposes but does not generally need patent protection. The terroir, climate, altitude and the like effect the produce and these are not easily replicated. Patents are not necessary for every successful business, but it seems to me that where an entrepreneur is trying to innovate, it makes sense to consult with a patent attorney about whether patent protection is appropriate, the costs involved and the timetable for them.

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The IP Factor by Dr Michael Factor - 1M ago

This is the first of a series of weekly articles providing an overview of different aspects of patents and other types of intellectual property. The target audience is heads of R & D, entrepeneurs and the like, rather than practicing IP professionals. Feedback, is appreciated as always.

A patent is a monopoly that is limited in scope, time, and territorial coverage.

The scope of protection is determined by the ambit of the claims as allowed. The patent is only enforceable once it has issued, and whilst it is in force by paying renewals. Typically, a patent may be enforced for up to 20 years from filing (sometimes extendible to 25 years).

Patents can be enforced in the specific territory covered by the issuing jurisdiction to prevent  manufacturing, exporting from, importing to and exploiting within the specific jurisdiction.

A patent application will have a title, usually a background section and a summary of the invention, and then a description showing different ways the invention can be realized which often includes reference to Figures.

The patent application finishes with claims which are single sentences that succinctly define the invention. Writing patent applications, and particularly the claim section, is a skill. Great care is taken to avoid any ambiguity. The first time a noun is used, it is given with the indefinite pronoun ‘a‘ or ‘an’, and when subsequently mentioned, it is referred to as ‘the’ or ‘said’. This is to ensure that each and every element, whether it is a component of a device or system, or a manufacturing step of a process, is clearly differentiated from every other component. Each component must be referred to in the same manner throughout the claims. The same usage and terminology should be used throughout the description, since the description is used to understand the claims. Terms may be defined in the description or the summary. This is useful where such terms are ambiguous, and their exact meaning is different when applied to different technologies, or when used in academia the meaning is slighlty different to that when used in industry. However, care should be taken that such internal definitions should not contradict the dictionary definitions of the terms.

Patents are available for products and processes and new materials. To be eligible for a patent, an invention as defined by the claims has to be:

  • Novel
  • Non-obvious
  • Useful

There is some subject matter that is not considered patentable, such as business methods, therapeutic methods (apart from in the United States) and software per se. The boundaries change from time to time due to legislation, and, more often, due to case-law. However, a good patent attorney may be able to claim an invention that is novel, non-obvious and useful, in such a way that it is acceptable.

Essentially, the patent is a limited monopoly granted for teaching an invention, which facilitates human progress.

Novelty

Absolute novelty is generally required. If an invention is already on sale, or is described in print in some document in a library, no matter how obscure, it cannot be patented.

If an invention is slightly different from that described in a single document, it may be considered obvious and still not be patentable.

Similarly, if an invention is taught by a combination of documents that can reasonably be joined together, it will be considered obvious.

Obviousness is the US term. In Europe, the patent office relates to an invention needing an’ inventive step’ over that known.

The main difference between novelty and obviousness is that novelty is objective whereas obviousness is subjective. If the Examiner alleges that the claimed invention is described in a single document, he is either right or wrong. If he is right, one may sometimes overcome the objection by adding a further feature to the definition of the invention in the main claim. If the Examiner considers an invention obvious in light of a combination of pieces of prior art, one can argue that the invention is only obvious in hindsight, or that the combination of the elements itself involves an inventive step.

Claims may be independent, i.e. free-standing, or dependent, in which case they refer to an earlier claim and include all the limitations of that claim, but add some further limitation.

The claim structure should be succinct and clear. Different patent offices allow different numbers of claims and different numbers of independent and dependent claims for the basic cost of filing. Additional claims may be submitted, but at further cost. For example, the USPTO will allow up to 20 claims including up to three independent claims for the basic fee.  Additional cost is incurred for exceeding 20 claims, but the per claim increase is not a tremendous amount. In Europe, one is allowed 15 claims, and additional claims beyond the first 15 are very expensive.

A patent can only relate to one invention. However, different countries understand the term invention slightly differently. In general, in Europe one will be allowed one independent claim for a device or system and one independent claim for a method of use, or a process for fabricating the device.

The America Invents Act has brought the USPTO into line with the patent systems around the world. Historically, however, obviousness was slightly different from inventive step, in that the USPTO assumes that an invention is patentable and the onus is on the examiner to rebut this assumption by finding prior art that teaches the invention. In Europe, the inventor is supposed to make a positive contribution beyond that known, i.e. to make an ‘inventive step’ to deserve a patent. Apart from the different terminology, there is one other remnant of this distinction. In Europe, the Examiners like a two part claim construction, where that known is first recited, and then the inventive feature is provided at the end in a clause starting “characterized by…”.

Most patent examiners are guided by major court rulings in their jurisdiction when considering whether something is or is not inventive. A good patent attorney will have access to these decisions and will try to find relevant precedents. He will advocate on behalf of the applicant, and fight to obtain a patent that gives as broad protection as possible.

A good patent attorney will generally take into account the requirements of the main jurisdictions when drafting an application so that optimizing the claim-set for each jurisdiction is fairly straight forward.

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The IP Factor by Dr Michael Factor - 1M ago

“If I cease searching, then, woe is me, I am lost. That is how I look at it – keep going, keep going come what may.”
― Vincent van Gogh, The Letters of Vincent van Gogh

“No one is ever satisfied where he is….Only the children know what they’re looking for….”
― Antoine de Saint-Exupéry, The Little Prince

I was privileged to be invited to the IPR seminar on patent searching. The event was really for in-house IP managers, and although I effectively serve as the IP manager for a handful of main clients, I have an IP Boutique, so was not really eligible to attend.

I had a hectic day and worked through lunch, arriving at the seminar exactly on time, just as it was beginning. The first thing that struck me was that the seminar took place around a large rectangular table. All the women present were on the right side of the table (from speaker’s perspective, and the men were on the left. I’d never thought of Kim as religiously right wing to the extent that she would advocate separate seating, but no one seemed to object. Happily there was no mechitza – physical barrier, beyond the conference table which was certainly wide enough to prevent ilicit footsy.

Kim kindly pointing me in the direction of an empty chair directly in front of the buffet which included filled rolls, wraps, burekas, vegetable dips and rugelach style pastries. Purely for review purposes, and because I was hungry, having not had any lunch, I was grateful for this, and ended up not needing supper either.

There were two speakers. Firstly, Israel Twito talked about different types of searches and search strategy, using Questel Orbit as the search engine, thereby demonstrating its capabilities to the audience.

Not surprisingly, he chose a couple of quirky Inspector Gadget type examples as inventions to be searched for. One was concealed bridge spectacles that consisted of lenses that coupled to a through nose piercing. The other was motorized in line skates. He demonstrated keyword Boolean searching and classification searching, and showed the search functions and various fields that could be searched.

The presentation was a little pedestrian, and Kim actually asked that the level be ramped up for the second half.  I do offer searches, and on occasion have outsourced to Newtone. The type of inventions Israel Twitto was using to demonstrate the software are precisely the type that I would charge a minimal rate to cover initial meeting, search and report, and would probably find over a cup of coffee within minutes. The type of searches I’ve outsourced have been for things like lock-mechanisms, where there is no unique combination of classes or good keywords, since the mechanical components are all known and the inventive feature is rather more subtle. I’ve handled locks as a subcontractor from another IP professional, precisely because claiming such structures is far from trivial. Still, Israel lectures well and he fairly showcased himself and the search capabilities of the software. He briefly discussed Freedom to Operate and landscape searching.

Daniel Ovadya, the Questel Orbit sales representative that covers Israel then demonstrated how the software could be used for mapping industries, trends and the like. The software has impressive graph generating ability, and for business reports, is no doubt of value.

Daniel demonstrated various pitfalls that could result in searchers obtaining and displaying the wrong information based on the fact that the search engines review publications, and don’t necessarily take into account that national phase entries of European patents can be in force, despite there not being a separate publication. He emphasized that Questel avoided these errors by being programmed to summarize the data more correctly.

Here I have a problem. Questel has impressive artificial intelligence capabilities, and generates its own summaries of patent documents. It enables sorting through only live patents, and intuitively knows to consider PCT applications within 30 months, and pending EP publications. For all I know, it may be aware of the 12 month grace-period for late filing into Canada, the two month grace period for China, and that Hungary has a 33 month deadline. It does not suggest that the user consider searching European cases as well, or active PCT cases, but does things automatically. This results in it not being clear to the user, or at least not to me, where and how the engine is searching. I want transparency, not software that knows better.

I have a further issue. Daniel suggested that if one is doing Freedom to Operate, finding a lapsed patent that describes exactly what you are doing means you can stop searching, since it is in the public domain and anyone can do it. This approach is wrong. If a patent covers the combination of elements A+B+C+D and has lapsed due to failure to pay the renewal fee, there is no guarantee that there isn’t a valid earlier patent in force for A+B+C. Here is a concrete example: Israel Military Industries (IMI) developed a large pistol called the Desert Eagle that was patented in the States. It is rather large and has a wrist breaking recoil, so is most useful for American movies, and not overly practical. IMI dully received a patent for their gun. However, Magnum had a patent for a recoil mechanism that blocked IMI from manufacturing their gun. Eventually the companies collaborated and IMI made the weapon for Magnum, which distributed it.  If IMI’s patent lapses, Magnum’s could still be in force. The lapsing of IMI’s patent would provide freedom to operate to Magnum but not to other entities.

I respect Israel Twito’s searching experience and capabilities, and Daniel Ovadya’s knowledge regarding his software package. Both can be used but with care. Patentability and Freedom to operate are legal questions that should be addressed by patent attorneys. I t should be appreciated that data analysts are not competent to provide legal opinions. In fact true patentability and Freedom to Operate opinions are jurisdiction specific and heavily influenced by binding local case-law and legal constructs. For example, one cannot opine regarding the dangers of operating in Israel without knowledge of the Law of Unjust Enrichment, contributory infringement, constructive infringement, and so on. In other words, knowledge of the prior art is just part of it. One should know the relevant case law, including Schori vs. Regba, Rav Bareakh and A.Sh.I.R.  Where there is an issue preventing Freedom to Operate, a good patent attorney with legal and technical skills may be able to come up with a work around solution. However, this also requires knowledge of the doctrine of equivalent.

It is worthy of note that participants were encouraged to bring their laptops and Daniel Ovadya set them up with temporary Questel accounts to test the software. At the end of the event, he generously announced that the accounts would be active for 30 days, thereby providing participants with a proper opportunity to test out the software package.

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The Ministry of Commerce and Investment in  Saudi Arabia has decided to implement the Gregorian calendar in addition to the Hijri calendar. It is expected that the Ministry will install a proper integration system by the end of 2018.

The purpose of this integration is to facilitate the correct calculation of the due dates and deadlines related to trademark, patent, and design applications and to reduce the error rate in dates conversions due to the differences between the two calendars.

COMMENT

In Israel, the government pays lip-services to the standardized Jewish calendar which is

a calculated lunar calendar with periodic adjustments (additional months added at the end of seven out of every 22 years) to the solar calendar, to keep festivals in season.

Dates are reported with Gregorian and Hebrew calendars, but deadlines are calculated according to the Gregorian. That said, they are postponed due to Patent Office closures, which follow the standardized Jewish Calendar.

Thus whilst not recognizing a religious importance in the Birth of Jesus, and Christmas is not an official holiday, the Gregorian year is followed.

With a large Moslem minority, Arabic is semi-official language as well. I for one am grateful that we don’t have to record deadlines in accordance with the Hijri calendar as well.

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LIV
The IP Factor by Dr Michael Factor - 1M ago

On 2 November 2016,   JS IP LLC applied for Israel TM NO. 296031 for the word mark LIV, covering Night club services; nights-clubs; arranging and conducting nightclub parties; entertainment services, namely, conducting parties; night club reservation services, namely, arranging for cocktails and table service reservations at night clubs and night club events in class 41, and for bar and cocktail events in Class 43.

Before this mark was examined, on 2 July 2017, Food Makers LTD applied for Israel TM NO. 289182 for the word mark LIV, covering Services for providing food and drink; restaurants; food stands; food delivery service; catering service; coffee shops; cafeterias; all included in class 43. Food Makers requested expedited examination, claiming knowledge of a competitor intending on using similar marks which could result in misleading consumers and dilution of their mark.

The Examiner of JS IP LLC’s Application initiated a competing marks procedure under Section 29 of the Trademark Ordinance. 1972. The parties negotiated but failed to reach an understanding, and so the Examiner ordered that they submit their evidence within two months.

On 12 March 2018, JS IP LLC requested that the decision to hold a competing marks proceeding by reconsidered.

The Main Claims of the Parties

JS IP LLC clams that there was no grounds for opening a competing marks proceedings since the two marks are directed to very different services. Their application no. 289182 is directed to services provided at night in night clubs, whereas the competing Food Makers mark was for services provided to restaurants, catering and coffee shops. As JS put it: “We are dealing with two completely different trades; directed to different types of customers and serving different needs”.

Food Mixers disagree. They consider the Examiner was correct to consider the two marks as aimed at similar types of services to similar consumers; both companies provide similar services, since restaurants, coffee shops, bars and night clubs are all places of entertainment that, in addition to serving food and drink, provide an atmosphere and enjoyment. Due to the marks being identical, the Examiner is correct and a competing marks proceedings is in order.

DISCUSSION

JS IP LLC headed their request “A request for reconsideration of the need for a competing marks proceeding under Section 29 of the Ordinance”. I do not believe that that this is a request for reconsideration of the decision. The Applicant did not provide reasons justifying reconsideration, but rather considers that the Examiner erred in her assessment. Thus JS IP LLC is really appealing the Examiner’s decision.

Regulations 24-26 of the 1940 trademark regulations allow the Applicant for a trademark registration to appeal rejections of their mark. The decision to initiate a competing marks proceeding is not listed as one of those regulations that one can request reconsideration of, but the Commissioner does not consider this an intentional omission that closes the door to appealing the such a decision.

Section 29a of the Ordnance states:

(a) Where separate applications are made by different persons to be registered as proprietors of identical trademarks or those that are similar so as to deceive, in respect of the same goods or description of goods, and the special application was submitted as the previous application was accepted, the Registrar may refrain from accepting any of the applications until their rights are determined by agreement between them approved by the Registrar, and in the absence of such agreement or approval the Registrar shall decide, for reasons that shall be recorded as to which application shall continue to be processed in accordance with this ordinance. (Amendment No. 5) 5763-2003

In this instance, the two marks are identical. However, JS wish to register the mark in classes 41 and 43, whereas Food Makers have applied to register the mark in class 43. Before initiating a competing marks proceedings, one has to assess whether the marks are for the same goods or type of goods.

Te question of whether different goods are of the same type cannot be determined merely by the category. One type of good or service could be covered by different categories, and goods or services of the same category could be of different types. (see Opposition to 28264 Canlintex, 8 March 21972, and Appeal 352/69 Manhattan vs. Magfer ltd, 376 (30 November 1969). The test whether services are of the same type is based on whether customs of one vendor will realize that a service comes from a different vendor.

In this instance, JS claims that the services are of different types since they are used in “completely different” trade practices. JS’ services relate to night life, provided at night in night clubs, whereas Food Makers directs their services to restaurants, catering and coffee bars. Food  Makers claims that the goods are of the same type since restaurants, coffee shops, bars and night clubs are places of entertainment with family and friends, and that in addition o providing food and drink , these places provide enjoyment and atmosphere.

The Commissioner agrees with Food Mixers. The comparison between goods and services is not pedantic and narrow (See 3559/02 The Subscribers Club Toto Zahav ltd. vs. The Council for Regulating Gambling and Sport, p.d. 59(1), 894. The question that should be asked is whether the same ‘family of services” is being considered, such that there is a suspicion that the consumer could assume that there is a connection between the mark owners, or a franchise, or the like. If the response is positive, then the goods and services are of the same type.

JS stresses that their customers are different and their distribution channels are different. However, their request does not describe their customers or distribution channels beyond stating that they are different from those of Food Mixers.

Based on the information before him, it seems that CJ and Food Mixers both provide entertainment services. Although JC claim that their services are provided at night and Food Mixers’ by day, this is unsubstantiated, and Food Mixers’ products may also be available at night. To clarify these issues, it is necessary to have a competing marks proceeding.

The commissioner considers that feeding stations that serve as night clubs in the evening are well known world-wide, so one cannot make an a priori determination that there is no overlap that could result in customer confusion. If during the Section 29 proceeding the parties are able to convince him that there is indeed no likelihood of confusion, the commissioner  can apply the Section 30 option, and  allow co registration. What he can’t do, is make that determination without holding the proceeding.

(JC is correct that the directions for the examiners indicate that Sections 41 and 43 are independent, but he considers this irrelevant since these determinations change from time to time, and they do not rule out that both classes refer to the same type of good.

It is also noted that JS’s petition was submitted a year after the trademark Examiner announced the competing mark proceeding, and the parties negotiated unsuccessfully in the meantime. JS explained that it was only at the evidentiary stage that they noted the mistake in opening a competing marks proceeding. The commissioner considers that this supports Food Maker’s contention that there is possibility of confusion due to the similarity of services. Were JC to be correct that the services were wholly dissimilar, this would have been obvious to them far earlier.

The Competing marks proceeding shall continue, and JC will pay 5000 Shekels costs to Food Makers. Ruling Ofer Alon, 1 August 2018

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