The Motion for Summary Disposal
- The defendant, for its part, filed a motion to dismiss the claim in limine and petitioned for an extension of the time for the filing of the statement of defense. In my decision of March 31, 2025, I determined that the statement of defense would be filed by April 3, 2025, and that there was no reason to wait for a decision on the motion for dismissal.
- In her motion to dismiss the lawsuit in limine, she claimed that the defendant had purchased Benny Fawzi's shares in a court-bidding process in which the plaintiff also participated. As part of the bidding process, it acquired all the shares and Antoine Company was left with all its rights, including its rights in intellectual property, trademarks and name. It was argued that the plaintiff agreed to the terms of the bidding, did not raise any claim regarding the continued use of the company's name, and therefore she is silenced from denying the company's right to use its name now. The defendant argued that in these circumstances, the rule regarding "judicial estoppel" that prevents a party from raising contradictory claims in various proceedings applies. She further argued that the court's decision that the purchase of the shares includes the company's full rights constitutes an "act of court" that silences the plaintiff from renouncing her rights to use the name.
The defendant also claimed that Section 47 The Trademarks Ordinance does not deny her right to make use of the name, and therefore the plaintiff has no cause of action against her.
- In the statement of defense she filed, the defendant raised identical claims And reiterated and emphasized that the claim is liable to be dismissed since the exclusive rights to use the Company's name, including the trademarks, and/or label designs used by the Company, and that the transfer of the shares to Benny Fawzi in accordance with the court's decision in the framework of the bidding conducted in the insolvency case did not change the company's rights.
- On the merits of the matter, it was argued that Antoine's use of the trademark that includes the name 'Shukha' does not mislead the public. It was explained that the surname 'Shukha' is common in the Arab sector, and that apart from its use, the marks of the plaintiff's and defendant's products differ from each other in many variables. It was further argued that in any case the use was protected under the protection of Article 47 to the Trademarks Ordinance, which states that the registration of a trademark will not prevent a person from using his name or the name of his business, or of his predecessor in the business, provided that it is a real use. Since there is no dispute that his "predecessor in the business" was a member of the Shukha family, the use should not be prohibited.
Discussion and Decision
- As will be detailed below, I have reached the conclusion that the motion for dismissal in limine should be accepted, and that the claim should be dismissed. I am persuaded that the plaintiff has no reason to prevent the defendant from making use of her full name - Antoine Schoccha & Sons in a tax appeal - and the trademark registered in her name. I was also convinced that The plaintiff is silenced from denying the company's right to use the name because of the Judicial Estoppel and because of the existence of The Act of the Beit Din Regarding the Company's Rights to Use the Name.
The hearing dealt with the plaintiff's petition to prohibit the defendant from using her name in accordance with the Section 30 of the Companies Law, and therefore I will open the discussion with a few comments regarding the provisions of the Companies Law. I will then discuss the arguments regarding the cause of action and the alleged estoppels.