CUSTOMS INSPECTIONS
Customs unity between Israel and the Palestinian Authority, and Israel’s responsibility for the authenticity of goods imported into the Palestinian territories, raise legal questions that involve issues of international law and create difficulties in serving legal documents and executing judgments, say Dor Cohen Zedek and Yossi Markovich.
Palestinian Authority. Generally, in order for the Israeli courts to have jurisdiction in a lawsuit, the plaintiff must serve the statement of claims to the defendant. A common way to do so is by delivering the legal documents directly to the defendant. Although there is specific legislation pertaining to service of legal documents on Palestinians, this course of action is almost impossible to pursue in the Palestinian territories in reality. An alternate method in cases where the defendant is not located in the court’s jurisdiction is to serve the documents on an ‘authorised representative’, who works for the defendant and is present in the court’s jurisdiction.
For many years, rights owners made use of this to serve importers from the Palestinian territories, by serving the statement of claims to the customs agent operating on behalf of the importer. Te courts regularly accepted this. Te underlying rationale was that because the proceedings involved goods seized by customs, there was a sufficient working relationship between the importer and the customs agent to adequately assure the fulfilment of the service process, and the customs agent could justifiably be viewed as authorised to act on behalf of the importer.
However, in a surprising decision in Spin Master, the district court in Petah Tikvah ruled that service of legal documents on a customs agent in such situations was not legally sound. Te court ruled that because the involvement of the relevant Israeli customs agent was required by law, it could not be used to indicate a level of voluntary co-operation sufficient to satisfy the requirements of the ‘intensity of the relationship’ test for privity. Te court therefore ruled that the statement of claims must be served to the
www.worldipreview.com
Palestinian defendant in accordance with the regulating legislation. Nevertheless, despite the Spin Master decision, other judges (including in the same Petah Tikvah district) continue to hold that customs agents may be seen as an ‘authorised representative’ in this context.
Tese new court rulings, and the anticipated decision of the Supreme Court in the Christian Dior matter, raise issues at the core of enforcing IP rights. In practice, these rulings create a figurative triangle, whose vertices represent the state, the owner and the importer residing in the Palestinian territories. Te ruling in Christian Dior embodies the tension between the first two vertices (the state and the rights owner), while the ruling in Spin Master embodies the tension between the rights owner and the Palestinian importer.
Although these issues seem superficially procedural, they greatly affect the substantive ability of IP owners to enforce their rights. Moreover, they may also increase the required budget for enforcing IP rights. Te challenge now laid before the Supreme Court is to find the appropriate balance between the rights of IP owners and the state’s interest in preventing importation of counterfeit goods into its territory on the one hand, and the procedural rights of Palestinian importers and the need for protection from arbitrary acts on the other.
Dor Cohen Zedek is a partner with Pearl Cohen Zedek Latzer, one of the leading IP firms in Israel. Dor, a third generation IP lawyer, is admitted to practice in Israel and New York. She heads the firm’s trademark group, advises on trademark strategy worldwide, and handles trademark and design prosecution and litigation. Zedek is a member of INTA, AIPPI, PTMG and Marques, where she is also a team member.
Dor Cohen Zedek is a partner at Pearl Cohen Zedek Latzer. She can be contacted at:
dorcz@pczlaw.com
Yossi Markovich is a senior associate at Pearl Cohen Zedek Latzer. He can be contacted at:
yossim@pczlaw.com
Yossi Markovich is a senior associate at Pearl Cohen Zedek Latzer, where he specialises in intellectual property litigation. Yossi advises a number of major technology- based companies on a wide range of intellectual property issues involving patents, trademarks, designs, copyrights, trade secrets, counterfeiting and unfair competition.
World Intellectual Property Review September/October 2010
73
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104 |
Page 105 |
Page 106 |
Page 107 |
Page 108 |
Page 109 |
Page 110 |
Page 111 |
Page 112