The Supreme Court addressed the issue of parallel imports at length in the Tommy Hilfiger case. In this judgment, guidelines were set for the restrictions that apply to commercial activity in the field of parallel imports, including the advertising and marketing activities that accompany this activity (paragraphs 16-61 of the judgment of the Honorable Justice Barak Erez). In the case discussed there, the appellants imported to Israel, in parallel, clothing products of the clothing brand "Tommy Hilfiger".
It should be noted that the factual basis in the matter that was on the agenda in the Tommy Hilfiger case is characterized by a certain resemblance to the factual basis in the present proceeding. There, the appellants operated their business under the trade name "Tommy Hilfiger Importer's Warehouse" and advertised that they were selling their products at a cheap price. Arguments were also raised there against the appearance and manner of design of the business, and the appellants even operated a website bearing the name of the www.tommy4less.co.il complex.
In the judgment that was given there, it was held that trademark laws are intended to protect the trademark owner from acts of counterfeiting and deception and in certain circumstances even from using the trademark for products that are different from his products, but they are not intended to allow the trademark owner to impose restrictions on commercial activity in the products that are the subject of the trademark by means of parallel imports or to provide protection to the exclusive importer against intra-brand competition by way of parallel imports (ibid., Section 35). It was also determined that the use of the trademark in relation to imported goods in parallel imports, categorically, meets the first two tests - i.e., the identification test and the test of the necessity of use, and that the relevant and important test for examining the protection of "true use" in the marketing of products by a parallel importer is the "sponsorship test". In this regard, it was determined that in order to decide on the sponsorship test, the relationship of the representation created and its nature must be examined, while giving weight to the type of goods being sold, the nature of the sale - whether it is ongoing or one-time, and the reasonable expectation of the consumer.