ISRAEL
angle, lighting, background, or exposure of the particular photograph and these are all necessary to create the specifi c and unique fi nal result.
T e Supreme Court rejected the defendant’s contention that copyright should not be granted to works documenting deceased persons because it allegedly creates a de facto monopoly in this person’s image. Copyright protection should not be diminished by the fact that the subject of the work is a deceased person or an historic event which will never occur again; copyright protection may not be infl uenced by whatever historic signifi cance the work may acquire in the future.
T e court tried to fi nd the correct balance between the right of the public to access copyrighted works on the one hand, and the interest of the author who should be rewarded for his eff orts and resources invested in producing the documentary work on the other hand. T e court concluded that it is inappropriate to deny artists an economic incentive, certainly when such denial serves a commercial purpose, benefi ting the infringer.
Trademarks Four stripes do not infringe Adidas’s three
Adidas sued an importer of shoes bearing four stripes for infringement of its three-stripe trademark, for passing off , and for unjust enrichment. T e Supreme Court upheld the District Court’s decision, ruling that although Adidas proved a very strong secondary meaning of its trademark, the inherent distinctive character of the mark is weak, therefore the scope of protection of such a trademark is limited to identical, or very closely similar, marks.
T e court ruled that while applying the ‘trademark misleading similarity triple test’, it should be remembered that the subject of the examination is the mark itself and not a product bearing such a mark. However, this is a general rule, and deviation from it is possible where the circumstances dictate. In addition, an exception should be made regarding visual marks,
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especially marks serving as a decorative element on the product, where the detachment of the trademark from the product is artifi cial and problematic. In the matter at hand, therefore, comparison was made between the products of the parties as a whole, and not between the trademarks alone.
Given the weak scope of protection to which Adidas’s three-stripe
trademark is entitled, and given the fact that the defendant marked its shoes with a four-stripe mark along with the word ‘Sidney’ in three places, the court concluded that there was no misleading similarity between the products, and therefore no trademark infringement.
Adidas petitioned the Supreme Court for a further review of this case before an extended panel of Supreme Court judges, a procedure which is allowed very rarely, and only in cases where the petitioner can convince the court that
World Intellectual Property Review e-Digest 2013 83
THE COURT SUGGESTED POSSIBLE ROUTES TO OBTAIN SUCH AN ORDER BUT THE MAJORITY RULED THAT AN ORDER CANNOT BE GRANTED WITHOUT AN EXPLICIT PROVISION IN LAW.
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