This article is general information, not legal advice. Every case is examined on its own facts, and every cause of action has its own limitation period.
On the desk in the office of a neighbourhood bakery sit three things that look alike and are protected in entirely different ways. The logo on the sign and on the paper bags. The photographs of the cakes taken for the website. And a drawing of a dough-proving device the owner built in the back kitchen. In the same week a shop two streets away opened under an almost identical name, a competitor's website showed your photograph of the chocolate cake, and someone asked whether the device could be "registered for copyright". Three statutes answer the three questions, and each gives a different answer to the question that comes before them: when anything needs to be registered at all.
The logo: what registration gives, and what exists without it
The Trade Marks Ordinance [New Version], 5732-1972, provides that a person who wants the exclusive right to use a sign as a trade mark may apply to register it. The application goes to the Registrar of Trade Marks, at the Trade Marks Department of the Israel Patent Office, for the classes of goods or services the registration is to cover. A sign is registrable if it is capable of distinguishing the owner's goods from those of others. A valid registration entitles the owner to exclusive use of the mark on the goods for which it is registered. It lasts ten years from the filing date, and renewal gives a further ten years each time. In any proceeding the registration itself is prima facie evidence of its validity. "Infringement" under the Ordinance is use, by someone not entitled to it, of a registered mark or a mark resembling it, in relation to the goods for which the mark is registered or goods of the same description, and in such an action the owner is entitled to an injunction and damages. And a bakery that never registered? The court will not entertain an infringement action under the Ordinance over an unregistered mark, unless it is a mark well known in Israel, and then the remedy is an injunction only. What moves the answer about the shop two streets away: whether the logo is registered, for which classes of goods, and what is similar, the name or the design. A surname shared by both owners is not settled by registration, because the Ordinance preserves every person's bona fide use of their own name or the name of their business.
The photograph: a right that arises without registration
The Copyright Act, 5768-2007, does not make the right depend on registration. Copyright subsists in an original literary, artistic, dramatic or musical work fixed in some form, and in a sound recording. A photograph is listed in the Act among artistic works. The right is the exclusive right to copy the work, publish it, make it available to the public and more, and copying includes electronic storage. It lasts for the author's life and seventy years after death. What the Act does not protect: an idea, a procedure or method of operation, a mathematical concept, a fact or data, and news of the day. The right covers the way they are expressed. The author also has a moral right, to be named on the work and to have it kept free of a distortion that harms the author's honour or reputation. It is personal, and stays with the author even after the copyright has been sold. For the cake photograph that turned up on the competitor's site, the first question is who owns the right. An employee who took it for and in the course of their work: the employer is the first owner, unless otherwise agreed. An outside photographer commissioned to take it: the photographer is the first owner, unless otherwise agreed, expressly or by implication. The order, the invoice and the correspondence answer that, and sometimes it turns out the bakery only received permission to use the picture. Fair use is permitted for purposes such as criticism, review, journalistic reporting or teaching, and is judged by the purpose of the use, the nature of the work, the extent of the use and its effect on the work's market. A product photograph copied to sell a competing product stands a long way from that list.
The invention: what goes to a patent attorney
The Patents Act, 5727-1967, protects an invention, a product or a process, in any field of technology, if it is new, useful, capable of industrial application and involves an inventive step. An invention counts as new if it was not published before the filing date, in Israel or abroad, in a way that lets a person skilled in the art carry it out. A video of the device on the bakery's Facebook page, a month before filing, is exactly that kind of question. The application is filed with the Patent Office with a specification of the invention, and the patent owner is entitled to prevent anyone else from exploiting it without permission for twenty years from the filing date. Preparing patent applications for a fee is reserved by the Act to a patent attorney, someone entered in the Register of Patent Attorneys, and alongside them to an advocate. Our firm does not draft patent applications, and refers whoever arrives with a drawing to a patent attorney. What stays with the lawyer is the other side of the same Act: an infringement action, in which the claimant is entitled to an injunction and compensation, and the court weighs the direct loss, the extent of the infringement, the infringer's profits and a reasonable royalty.
The sum in a cease-and-desist letter is the demand of whoever wrote it. The Act has a ceiling, and eight considerations before it.
The letter: "remove it and pay within 14 days"
A cease-and-desist letter usually arrives by email, on a law firm's letterhead, and sets out the right, the infringement and the demand: take the picture down or stop using the name, and pay a sum within 14 days. The sum and the deadline belong to the writer. What the Copyright Act provides: infringement is a civil wrong, and the claimant is entitled to an injunction unless the court finds reasons not to grant one. The court may also award, at the claimant's request, statutory damages without proof of loss of up to 100,000 new shekels for each infringement, and infringements committed in a single course of conduct count as one. In setting the sum the court may weigh the extent of the infringement, its duration, its seriousness, the actual loss to the claimant, the profit the defendant made, the nature of the defendant's activity, the relationship between the parties and the defendant's good faith. Someone who did not know, and had no reason to know, that copyright subsisted in the work is not liable in damages. A further carve-out: a person who put online an artistic work that had already been made available to the public, not for a commercial purpose and not from a sales catalogue, and who stopped within a reasonable time of receiving notice, stays outside the statutory damages provision. In other circumstances, when the picture was used to sell a competing product and stayed on the site for months after the letter, the eight considerations read differently. A letter about a trade mark is checked first against one question: whether the mark is registered, and for which class of goods.
What is checked first
In all three cases the examination at our firm starts from one document. For the logo: the registration certificate, if there is one, with the classes of goods and the filing date, and if there is none, whether an application can still be made. For the photograph: who pressed the shutter, in what capacity, and what the order says. For the letter: the date it was received, and what has been done since. And for the drawing of the device there is no examination at our firm, only a referral, and one question before it goes out: whether the device has already been shown to anyone outside the kitchen.