In the framework of the discussion regarding the application of the sponsorship test, the Supreme Court specifically addressed the market for the sale of vehicles, while noting the significance stemming from the high cost of transactions carried out in this market and the importance of the issue of liability given to customers in these transactions:
"Thus, for example, when we are dealing with the sale of vehicles, for which the importer's liability is of great importance to the consumer and whose cost is significant for the average person, the marketer will have to emphasize prominently that he does not operate under the auspices of the car manufacturer who owns the trademark, and specify the significance of this (for example, who is responsible for handling the vehicle's malfunctions during the warranty period). On the other hand, a marketer of toys that are sold at a low price and are imported in parallel, products that the consumer does not expect to purchase under the auspices of the manufacturer who owns the trademark, and in general, the issue of liability for them is less fateful, will be imposed on a lesser degree with regard to clarifying the fact that the seller does not operate under the auspices of the trademark owner (see and compare: Soroker, at p. 297)" (paras. 29-30 in the Tommy Hilfiger case).
However, as will be explained below, this determination must be treated with the necessary caution, in accordance with the legal situation since the enactment of the Licensing Law and the judgment in the Union Motors case, when today the official importer is obligated to provide the warranty services to which the manufacturer has undertaken, even if the vehicle was purchased from a parallel importer.
It should be noted at this point that the parties referred to rulings in the field of courts around the world, but in the judgment in the Tommy Hilfiger case, the Honorable Justice Barak Erez clarified that the various legal systems around the world hold different points of balance between considerations of competition and antitrust and the protection of the commercial owner, and that the Israeli balancing point is one that suits "the conditions of the country and its residents". Therefore, caution must be exercised when examining arrangements from other legal systems, given the nature of the State of Israel, which, as stated in this judgment, is "a relatively small state and largely isolated from its neighbors" (ibid., para. 48).
- Unjust enrichment - As stated, the plaintiff argued in her lawsuit, inter alia, for the existence of a cause of action by virtue of the laws of enrichment and not in law. In this regard, it was ruled in the Tommy Hilfiger case that it is possible that this cause of action will be formulated in cases of parallel imports - "where the marketing efforts of a parallel importer 'hitch a ride' on marketing efforts and investment in the marketing of the registered trademark owner". For this purpose, the plaintiff must prove that the actions of the parallel importer adhered to an "additional element". In addition to the aforesaid, it was clarified in the judgment that the laws of enrichment and not in law are not intended to allow the expansion of the monopolistic power of the trademark owner, and that relief by virtue of this cause of action will be granted by the court only in circumstances of deception or exceptional "parasites". In this context, it was further determined that there is no room for judicial expansion of the field regulated by legislation regulating the field of intellectual property (para. 34).
- Commercial torts - in this context the lawsuit includes both a claim for the existence of a tort of passing off, which is enshrined in section 1(a) of the Commercial Torts Law, which prohibits a dealer from causing an asset sold by him or a service he provides to be considered by the customers, mistakenly, as an asset or service sold or provided by another dealer. The tort of passing off therefore focuses on the question of misleading consumers, and therefore, in this regard, an examination of the existence of a real fear of misleading consumers is required. It was also alleged in the lawsuit for the tort of unfair interference regulated in section 3 of this law.
In the Tommy Hilfiger case, it was held that in the case of parallel imports, we are dealing with the marketing of the same products by different marketers, and in any case the link to the owner of the mark is not misleading, but rather natural and necessary. However, if the parallel importer causes its customers to mistakenly think that it is marketing products imported by the official importer, with a warranty on its behalf, then these acts may indeed be considered plagiarism. It was also held that this cause of action requires proof of the existence of and a reasonable fear of misleading the public (ibid., paras. 33, 61).