Labor Dispute (Tel Aviv) 32487-09-22 Moonshot Marketing Ltd. – Raz Jorgenson - part 2

The domain name of the defendant and the plaintiff is identical, the graphic layout of the plaintiff and defendant's main page is identical and looks the same.  This is copying.  The text of the "Due Diligence" on the website is identical.

33. The defendants make use of the data contained in the PIVOT report in relation to customers. According to data provided by Google Ads to the plaintiff, defendants 1-2 began to use the same "search terms" used by the plaintiff in the field of Casino IE activity (Appendix 16 to the statement of claim).  Only through the information to which the defendant was exposed in the plaintiff could defendants 1-2 know how to choose from countless search words the most profitable words for each customer (supplier), the ideal combination (single word/pair of words), the country in which it should be advertised, the specific hours that yield high profits, and the design of the ranking sites suitable for each search word.  This information was accumulated by the plaintiff through years of trial and error and the investment of huge sums of money, and it is proprietary and confidential information, which the defendants are not permitted to make any use of (paragraph 126 of the amended statement of claim).
34. The defendant copied the plaintiff's rating sites.
35. The defendant was exposed to daily reports containing data and their analysis about the customers.
36. The defendant's CEO confirmed that the defendant is a competing company with the plaintiff.
37. The plaintiff appealed to the defendants to cease breaches of the agreement (Appendix 17 to the amended statement of claim).
38. The defendant has fundamentally breached his employment agreement and the plaintiff is entitled to maximum compensation.
39. The defendant breached the tort of causing breach of contract.
40. The conduct of the defendants constitutes enrichment and not in a trial.
41. The conduct of the defendants constitutes theft of a trade secret.
42. The defendant's conduct constitutes a breach of the tort of statutory breach.
43. The defendants infringed copyright under the Copyright Law.
44. The defendants' actions are criminal offenses.
45. The transfer of the place of hearing has the authority to hear the claim.
46. The plaintiff petitions for compensation in the amount of ILS 5,000,000 for the damages caused to her and the profits that the defendants derived as a result of their actions.
47. Alternatively, the sum of ILS 3,900,000 was claimed without proof of damage under the Commercial Torts Law for each and every breach. These are customer service agreements.

The defendants' arguments

1. The plaintiff operates rating and comparison sites in areas that the defendant does not deal with, such as VPNs, food deliveries, and live cams in the field of sex.
2. The defendant operates rating and comparison sites that the plaintiff does not deal with: building websites, home insurance, password management, home security, medical alarm devices, legal services, and more.
3. The defendant and the plaintiff also deal with marketing channels that are not just rating and comparison sites. The plaintiff also deals with App Marketing applications in which the defendant does not operate.  The defendant operates in an application through Lead Generation Services (the end users answer questions and the defendant publishes a tender for proposals from companies competing in the same relevant field - for example, of car insurance) as well as through the application of direct marketing ads on social networks, and in particular on Facebook - marketing channels through which the plaintiff does not operate.
4. The lawsuit deals with the field of appellation through ranking and comparison sites, and only in the field of gambling and gaming in England and Ireland. The two companies, the plaintiff and the defendant, operate rating and comparison sites.  The defendant worked for the plaintiff and as part of the defendant's role as a business development manager for the plaintiff, he dealt only in the field of gambling and gaming, and with the defendant he serves as the head of the business development department and controls many areas.

The defendant has been operating rating and comparison sites since the beginning of its career, i.e., since 10/20.  The operation of rating and comparison sites in the field of gambling in England and Ireland began even before the defendant began his employment with the company and without any connection to him.

5. One of the defendant's founders was involved in application and ranking and comparison sites in the field of gambling, so he had all the knowledge and expertise.
6. The plaintiff did not invent the field of appellation, nor did she invent the field of rating and comparison sites, nor did she invent the field of gambling.
7. Even if the plaintiff's claims for copying are correct, at most she had a cause of action against the defendant and not against the defendant for the tort of passing off (with regard to sites that are visually similar).
8. The transfer of a hearing venue has no substantive jurisdiction with regard to the tort of passing off.
9. Copyright law is also not under the jurisdiction of the court.
10. The defendant did not try to coax any employee to move from the plaintiff since that employee did not work for the defendant and did not work for the defendant.
11. The terms that appear in the defendant's employment agreement with the plaintiff are "naked" and have no legal validity.
12. The plaintiff knew about the defendant's employment with the defendant since the defendant published these facts on his LinkedIn profile.
13. The defendant did not hide his new place of employment, but rather shared with the plaintiff that he was going to move to a company to which another employee of the plaintiff had approached (Lior Lankri).
14. On July 15, 2022, the defendant informed his manager, Shahar Simcha, that he had begun to work (Appendix 3 to the amended statement of defense).
15. The plaintiff did not apply to the transfer of a hearing place to obtain an injunction in order to prevent him from employing the defendant.
16. The defendant did not receive special training or special consideration for his obligation in the employment agreement.
17. The plaintiff herself employs employees who previously worked with her competitors (Appendix 4 to the amended statement of defense).
18. The defendant's familiarity with the field of gambling is not from the period of his employment with the plaintiff. The defendant himself worked in the years 2017-2019 at Woo and from 2019 until July 2020 as a business development manager at Spinomal (a provider of slot games for online gambling sites around the world).  The plaintiff approached the defendant while he was working at Spinomal and solicited him to leave his job at Spinomal (Appendices 5 and 6 to the amended statement of defense).
19. Until the defendant's last day at work for the plaintiff, Eliran Uzan (the owner) and Tzachi Elsi (CFO) tried to persuade the defendant to remain at his job despite his notice of leaving. The plaintiff praised him for the post he wrote regarding his departure (Appendix 7 to the amended statement of defense).  The defendant cooperated with the plaintiff, answered questions for his replacement, and even referred clients who contacted him after he ended his employment with the plaintiff.
20. After the termination of his employment, a notice was sent to the defendant by Mr. Happy that he was entitled to a bonus payment for the first and second quarters. The bonus was not paid (Appendix 8 to the amended statement of defense).
21. At a conference held in Malta, the defendant met with Simach and they spoke cordially.
22. In the original statement of claim, the plaintiff claimed that the defendant was the one who coaxed Mr. Lior Lankri (and not Lior Bustnai) to move to work for the defendant. In the statement of defense, the defendant clarified that Mr. Lior Lankri was the one who approached him and suggested that he and another employee, named Lior Boustanai, join him and move with him to work for the defendant (paragraph 10.1 of the statement of defense).
23. Lankri is also the one who created the relationship with the defendant and not the other way around.
24. Lankri approached the defendant and not the defendant or anyone on its behalf.
25. Lankri never worked for the defendant.
26. Boustani never worked for the defendant.
27. Lankri and Mr. Boustani remained to work for the plaintiff after they were pressured and intimidated or their working conditions were improved by the plaintiff and they do not work for the defendant and never moved to work for the defendant (paragraph 10.3 of the statement of defense).
28. The defendant was an ordinary employee and was not exposed to trade secrets or confidential information. The plaintiff's period of employment was short.
29. The reports to which the plaintiff refers are daily reports that are updated daily and sometimes several times a day.
30. The performance of each company on the ranking and comparison sites changes on a daily basis.
31. A Google search for the keywords "online slots" yields both of the plaintiff's sites, and a review of these sites shows that there are different rankings on the plaintiff's website compared to that of her subsidiary. Each site relies on the data at the time of the examination (Appendix 10 to the amended statement of defense).
32. In the statement of claim, the plaintiff admits that the "most sophisticated and dynamic" algorithm on the basis of which the aforementioned reports are allegedly compiled is not the plaintiff's but Google's. The defendant and the plaintiff and the other companies engaged in the appellation are customers of Google and use Google's algorithm.
33. The defendant, like the other companies that deal with epilepsy, uses tools available on the Internet whose role is to help those who work in the field of epilepsy analyze feasibility, such as by means of a tool called "SEM RUSH". It is a tool that allows you to know what keywords other websites promote on Google and you can choose to use exactly those words (section 11.6 of the revised Code).
34. The plaintiff does not have any "customer list" which is confidential information in the field of gambling. The plaintiff herself publishes on its rating and comparison websites the names of all of its customers (section 12.1 of the revised Statute).
35. The customers in the gambling field detailed in the statement of claim work in parallel with many companies that deal with the field of appellation.
36. Client contacts (affiliate managers) tend to change jobs very frequently (on average every six months), in such a way that a significant number of contacts who worked for a particular client already work for another client (Section 12.5 of the revised Code).
37. The transfer of a hearing venue has no jurisdiction to hear intellectual property or tort law or copyright grounds.
38. The plaintiff knows that there is no connection between the defendant's professional occupation and experience as a business development manager and the design of the defendant's website made by UX developers and designers (section 13.1 of the revised Code).
39. Even if the defendant had wished to "copy" the plaintiff's websites, it would not have had any need to employ the defendant for this purpose, since the plaintiff's websites are public and exposed to all (section 13.2 of the amended law).

There is no prohibition on copying the appearance and visibility of the website.

40. There is nothing unique in the plaintiff's websites for rankings and comparisons in the field of gambling, and they look exactly like many websites of other companies that deal with rankings and comparisons in the field of gambling (section 13.4 of the Revised Code).
41. There is no uniqueness in the domain address of the plaintiff's websites. This information is in the public domain and can be easily discovered that it is not confidential or protected information (section 13.4.1 of the amended 25).
42. Many websites use similar domain addresses, with the phrase "10 best XXX sites" and "10bestXXX" often used. This is not an invention of the plaintiff (section 13.4.2 of the amended statute).
43. The structure of the website, the headings, the appearance, the graphic design, the colors, the division into columns, the buttons, the ratings and the content of the defendant's rating and comparison sites in the field of gambling are common throughout the field (section 13.4.4 of the amended Clause).
44. The main and secondary titles of a website provide a description of what the website is meant to provide. The main headline on all sites in the field is a variation that means the 10 best companies in a particular field.  There is more detail in the secondary heading (Appendices 15, 16 to the amended statement of defense) (section 13.4.5 of the amended Statement of Defense).
45. There is no similarity in colors or text between the plaintiff's logo and the defendant's logo.
46. All ranking and comparison sites use almost identical icons and phrases (examples from websites were attached as Appendix 18 to the amended statement of defense) (section 13.4.8 of the amended Statement of Defense).
47. On all the ranking and comparison sites, the texts, characteristics and design are very similar, and the logo itself is the logo of that relevant customer (examples were attached as Appendix 20 to the amended statement of defense) (section 13.4.10 of the amended Statement of Defense).
48. A copy of a comparison between the UK Casino website and the IE Casino website in the plaintiff and the defendant's websites (Appendix 11 to the statement of claim) shows that the order line on the defendant's website is not similar to the order line on the plaintiff's website (Appendix 11 to the amended statement of defense) (paragraph 13.4.11 of the amended statement of defense).
49. On the defendant's website, the "call to action" button ("GET BONUS") is purple in contrast to the green button that appears on the website of the plaintiff and other companies in the field (section 13.4.14 of the revised Code).
50. According to the plaintiff's confession, the sophisticated and dynamic algorithm to which she refers is not the plaintiff's own, but Google's. The defendant is also a customer of Google (Section 31 of the Revised Code).
51. The defendant worked for the plaintiff for many hours above full-time, including working on weekends, nights and other unusual hours, and contributed greatly to the increase in the plaintiff's income. The defendant was of the opinion that he was not sufficiently compensated and chose to resign from his job (section 69 of 25, as amended).
52. The plaintiff chose not to block the defendant from accessing the information during the notice period because she wanted him to continue to work during the notice period. The defendant did not make use of any of the plaintiff's information (section 71 of the amended law).
53. The defendants petition to dismiss the claim.

The rest of the parties' arguments will be raised in the framework of the decision.