Later on, agreed instructions were established regarding the font size, logo, etc. (all of which are below): First Settlement Agreement). The significance of this agreement is that the defendant and the Bnei Fawzi Group, which marketed its products, were entitled to make use of the company's name on oil products and on the agreed terMs.
- Even after the settlement was reached, disputes arose between the parties regarding the use of the name Shukha, since the plaintiff claimed that the defendant and the Bnei Fawzi group were violating the agreement and in contempt of the judgment given (see the decision of Judge R. Lemmstreich Letter, dated May 22, 2016).
- On April 21, 2016, the plaintiff filed an additional lawsuit against Antoine and its officers and against Benny Fawzi and its management, claiming that the defendants there were violating the first settlement agreement and even using the name of Shukha on other non-oil food products (Civil Case 43313-04-16).
- This proceeding, which was conducted before Judge E. Weinstein, also ended with the settlement agreement approved by the court on November 1, 2016 (Appendix 5 to the statement of claim) (hereinafter: The Second Settlement Agreement). In the judgment, the parties' agreements were approved as detailed in the hearings of June 19, 2016 and October 10, 2016, and an agreed wording was approved in which the defendant and the Benny Fawzi Group were entitled to make use of the marketing of the products.
In principle, it was agreed that the defendants there would comply with the terms of the first settlement agreement and would be entitled to market the products using the company's name, while adding instructions regarding the use of an additional language and determining the font and the form of the caption. For our purposes, it is important to emphasize that both according to the first settlement agreement and according to the second settlement agreement, the defendant (as well as the Benny Fawzi Company, which markets its products), was entitled to make use of the full name of the company "Antoine Schocke & Sons Ltd" on the products marketed by it.
- Even after the second settlement agreement, the plaintiff and the defendant remained divided between them, and various hearings were held between them on the grounds of breach of the obligations under the settlement agreements. For the purpose of this proceeding, it is not important to describe all the proceedings (see Appendices 8, 9, 10 to the statement of claim).
It should be noted, inter alia, that the defendant also applied to the Registrar of Trademarks in order to register the trademarks in accordance with the agreements between the parties (Appendix C to the statement of defense). Various arguments were also raised before the Registrar of Trademarks, and the plaintiff filed objections to the registration. These proceedings are also not essential for a decision in the current proceeding.
- In 2020, Antoine went into insolvency, and on August 26, 2020, Best Consultants Ltd. filed an application for an order to open proceedings against it (Case Insolvency 55052-08-20). On November 5, 2020, an order was issued to open proceedings and Adv. Ofir Didi was appointed as a trustee for the implementation of the insolvency proceedings.
- In Report No. 1 submitted by the trustee in the insolvency case, the trustee noted that "[...] It appears that the company is an active company with significant trade volumes that imports and/or sells and/or markets food products in the Arab sector, where the trademark "Shukha" (with various inflections and symbols) is of great value, and that Bnei Fawzi Shmish markets and/or sells and/or manages close cooperation with it for the purpose of selling the goods." (See report dated December 22, 2020, section 16).
- Following the receipt of the report and at the request of the trustee, I instructed on December 23, 2020 to the Benny Fawzi company.[...] To refrain from marketing and selling products on which the name "Shukha" is stamped in any form or form, except with the approval and consent of the trustee".
- Shortly thereafter, on December 30, 2020, the plaintiff, through Adv. Dolev of the Meitar Law Office, made an offer to purchase all of the defendant's shares in exchange for the sum of ILS 4,000,000 (the offer was attached as part of Appendix 4 to the statement of defense). In the proposal, the plaintiff notes a list of conditions that are suspended for the transaction, including that "The court approval will be given according to which the company (i.e. the Antoine Company - R.S.) is the sole owner of the Company's name, "Antoine Schocke & Sons Ltd.", as well as all exclusive rights to use this name, in any variation and for any purpose, including in other designed marks and/or label designs that the Company has made and/or is using by itself and/or through others, in any language used [...]". To prove the seriousness of her proposal, the plaintiff forwarded a bank check to the trustee in the sum of ILS 400,000.
- Upon receipt of her proposal, the trustee applied to the court to authorize him to convene a meeting of creditors in order to discuss the proposed arrangement (the request was attached as Appendix 4 to the statement of defense). This application was heard before me on January 14, 2021. At that time, it became clear that the Benny Fawzi Group claimed that by virtue of the distribution agreement and/or purchase agreement of March 22, 2018, the defendant had assigned them all the rights in the trademarks registered in its name and in the intellectual property, including the rights to use the name of the defendant "Antoine Schocke & Sons Ltd."
- In my decision at the end of the hearing, I instructed the trustee to publish an invitation to receive offers for the purchase of the defendant's rights. I also instructed that at the same time, Benny Fawzi's claims regarding the rights in the intellectual property would be clarified and that the trustee must clarify to each bidder that the question of ownership of the intellectual property and trademarks is in dispute.
In the advertisement published by the trustee (Appendix 5 to the statement of defense) it was explicitly stated "Proposals are requested for the purchase of the Company's shares and/or its business activities and/or trademarks". It was also noted that the company had submitted applications to the Registrar for the registration of a number of trademarks, and that objections were submitted against the registration applications. It was also noted that a third party claims rights in the intellectual property of the company - the defendant.
- The proceedings for the sale of the defendant's shares proceeded in accordance with my aforementioned decision. Suffice it to note for the purpose of this proceeding that among the parties that offered to purchase the defendant's shares in the bidding was also the plaintiff. I will also note that the plaintiff reiterated that a prerequisite for her proposal is a decision on the company's intellectual property and trademark rights (see also the Supreme Court's decision in Civil Appeal 8158/21).
- It was also reported that the controlling shareholder of the defendant, Mr. Gabi Shukha, submitted various applications for approval of a creditors' arrangement. It should also be recalled that in the framework of the bidding before the trustee, the plaintiff raised its offer to purchase the defendant's shares, subject to the aforesaid conditions, and offered a sum of ILS 6,000,000.
Prior to the request to approve the sale of the shares to the plaintiff was discussed, the controlling shareholder of the defendant filed a request for a creditors' arrangement and the sale proceedings were delayed (see my decision in the insolvency case of November 18, 2021).
- Prior to deciding on the applications for the sale of the defendant's shares or the approval of the creditors' arrangement proposed by the controlling shareholder, I discussed Benny Fawzi's request to determine that Antoine's rights in the trademarks and the use of its name were assigned to Benny Fauzi in the distribution and sale agreements. On February 11, 2022, after hearing evidence and arguments from the parties, I determined that "The rights to make use of the trademark in dispute (Antoine Schocke & Sons - R.S.), or any other trademark that includes the name "Shukha", were not transferred to the Applicants (from the Bnei Fawzi Group, R.S.) or to any of them".
Following this decision and the clarification that the rights to make use of the trademark "Antoine Schuchke & Sons Ltd" were not transferred to the Benny Fauzi Group, the door was opened for the sale of the defendant's shares.
- On February 22, 2022, the trustee filed a motion to set a date for the bidding between the plaintiff and Benny Fawzi and to convene a meeting of creditors (attached as Appendix 6 to the statement of defense). To his request he attached the text of the proposal that each bidder is required to sign. Inter alia, in clause 6 of the proposal, a wording of the precondition as required by the plaintiff herself in her proposals to the trustee was noted, namely that "The offer is subject to the fact that the company is the sole owner in the name of the company: "Antoine Schocke & Sons Ltd.", as well as of all exclusive use rights under that name, in any variation and for any purpose [...]".
- After various postponements, on April 14, 2022, a bidding was held between the plaintiff's bids - Benny George and Benny Fawzi. The bidding was conducted in the courtroom in the presence of the plaintiff's counsel and her manager, Adv. Ihab Shukha (the minutes of the hearing were attached as Appendix 7 to the statement of defense). At the end of the bidding, Benny Fawzi's offer to purchase the shares of Antoine Company for a total of ILS 16,000,000 was accepted.
- Since the Benny Fawzi Group filed an appeal against the decision of February 11, 2022, according to which the trademarks remained the defendant's and were not assigned to it, the trustee and Benny Fawzi reached a settlement that was approved by me on July 19, 2022. In view of the settlement, Benny Fauzi paid the trust fund a sum of only ILS 14.2 million, and the appeal filed by it was dismissed. The settlement also included a settlement regarding the debt claim that Benny Fawzi submitted to the trustee.
- According to the settlement, and at the request of Benny Fawzi, the defendant's shares were registered in the name of S. F.S. Bakeries Ltd., which is a member of the Benny Fawzi Group and is named after Gavi Shukha. Most of the shares, 27 management shares and 54 ordinary shares, were registered in the name of S. Nevertheless. Ace, and a minority, 3 management shares and 6 ordinary shares, were registered in the name of Gavi Shukha (Appendix 1 to the statement of claim, and see her ruling confirming the registration, Appendix 39 to the statement of claim). A review of the documents submitted indicates that the shares were registered in the name of Gavi Shukha in trust for the S company. Nevertheless. S (Appendix 38 to the statement of claim).
The Prosecution
- On December 31, 2024, the plaintiff filed her claim in this case against Antoine and the Registrar of Companies. The claim against the Registrar of Companies was dismissed by consent. In her lawsuit, the plaintiff petitions for a permanent injunction, according to Section 30 to the Companies Law, 5759-1999, which prohibits the defendant from using her name and instructing her to change her name so that it does not include the name "Shukha".
The plaintiff claims that the company's use of its name, and the use of the trademark "Antoine Schuchke & Sons Ltd.", is liable to mislead the public and harm the plaintiff's rights in the trademarks registered in her name and the goodwill she has accumulated.
- The plaintiff claims that in the past the defendant used her name, as she benefited from the defense of "true use" of the name which reflected the ownership rights in the company. The plaintiff refers to this matter To the section 47 of the Trademarks Ordinance [New Version], 5732-1972. Today, after the change in the holding of its shares, the defendant no longer has the defense regarding "true use".
The plaintiff further claims that in the past she reached agreements with the defendant regarding the registration of the trademark with its full name, only on the defense of "true use". Today, after the change in ownership of the shares, the agreements that were reached are invalid.