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תג: avraham yakov

5 August, 2012,

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Unjust Enrichment-Copying an Unregistered Solar Memorial 'Candle'

Unjust Enrichment-Copying an Unregistered Solar Memorial 'Candle'

Hon. Avraham Yaakov presided. Given 9 July, 2012.


Remedies Seeked

Plaintiff requested a permanent injunction instructing the defendants to cease and desist the import of a solar memorial 'candle' called 'Ner HaTamid' as well as a request to grant a permanent injunction for the destruction of any existing candles as well as the molds used for their creation. The plaintiff further requests monetary compensation without proof of damage in the amount of 100,000NIS, as per provision 13a of the Commercial Tort Act of 1999. Alternatively, the plaintiff requested restoration as per the provisions of the Unjust Enrichment Act of 1979, the plaintiff's losses estimated at 64,329 NIS.

\Case Background

In 2009 the plaintiff began marketing the candle and in 2010 plaintiff became aware of the competition of an additional distributor. Plaintiff claimed that after examining the candle it turned out to be an exact replica of the original candle-both externally and internally-distributed by the defendant, and has therefore brought suit.



The court found partially in favor of the plaintiff and ruled that the defendants unjustly enriched themselves at the plaintiff's expense. The passing-off claim, however, was dismissed by the court, because of lack of Reputation proven by the plaintiffs.

A permanent injunction was not granted based on the unjust enrichment claim. Defendants were ordered to compensate plaintiffs in the amount of 10,260NIS, the amount that the court was convinced reflected the defendants' profits of the competing merchandise. In addition, court costs were awarded to the plaintiffs in the amount of 50,000NIS.


Note: This decision differs from the latest trend of the Israeli courts not to find in favor of plaintiffs in cases of unjust enrichment, in situations where they have legal alterative claims, for example patent infringement.


Main issues in the case



Israeli precedents have ruled that in order for the plaintiff to prove passing off they must prove the existence of two conditions: The first is Reputation in the sale of the product or services provided. The second, after proving Reputation, plaintiff must show that there is reasonable likelihood that a customer would be mislead by the product, in a manner that the customer will wrongly mistake the provider as the infringer and not the rightful manufacturer. In the case in hand, the plaintiff was not able to establish any Reputation he gained in the sale of the product, and can therefore not claim to the misleading of customers that goods or services provided by the defendant were in fact provided by the plaintiff. The plaintiff is therefore ineligible for damages set in the Commercial Tort Act.

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