The defendants further argued that precisely since a car transaction is a high-cost transaction, the consumers carefully check the details of the business from which they purchase the vehicle and its characteristics, so that in any case there is no possibility that the consumer who contracts with the defendant will be misled into believing that he received vehicle services from the official importer or from the plaintiff's authorized dealership.
The defendant also clarified that it had no desire to downplay its status as a parallel importer and that it was proud of its status and that it was supplying consumers with vehicles at lower prices than the plaintiff and its authorized agencies (paragraphs 20-21, 50-55 of Raz's affidavit). Raz further clarified in his testimony that the defendant's employees are usually former employees of Union Motors and that the defendant even makes sure to train its employees and provide them with professional training and refreshment from time to time, despite the fact that when she contacted Union Motors for the purpose of coordinating training days, she encountered an unreasonable and illegal demand for payment (paragraphs 32-34 of Raz's affidavit).
- As discussed above, in accordance with the sub-tests set out in the Toto Gold case with regard to the neighborhood test - "true use", it is necessary to examine, first, the identification test,e., whether the use of the trade name is necessary for the purpose of identifying the product, and secondly, the test of the necessity of using this trademark for the purpose of the business activity in question. After considering the picture of the evidence presented in the present proceeding and the arguments of the parties, in view of the normative framework reviewed above, I find in this regard that the defendant meets the first two tests of the aforementioned case law. First, the plaintiff did present evidence of other cases, relating to the conduct of a number of other garages that use trade names that do not include the use of the plaintiff's trademark. However, it has not been claimed, and in any case has not been proven, that these garages are also engaged in the parallel import of Toyota vehicles, in addition to being garages that provide repair and maintenance services for Toyota vehicles. Second, in the Tommy Hilfiger case, it has already been held that the use of a trademark in relation to goods imported in parallel imports clearly meets the test of identification, and that goods imported in parallel imports cannot be identified without the use of the identifying trademark of the product sold by the parallel importer (Tommy Hilfiger, at para. 29).
- Therefore, the examination and discussion should focus on the question of the existence of the sponsorship test. As stated above, in accordance with this auxiliary test established in case law, it is necessary to examine whether the use of the protected mark entails in the circumstances of the case a real probability that the reasonable consumer will be misled as a result of this use into thinking that the activity of the parallel importer is not separate but enjoys the protection of the trademark owner, who is the plaintiff in the present case.
As discussed above, in the Tommy Hilfiger case, it was held in the specific context of the vehicle market that it is precisely in the sale of vehicles, which are a significant transaction at its cost to consumers and therefore even the importer's liability is significant for them, the parallel importer must emphasize prominently that it does not operate under the auspices of the vehicle manufacturer. At the same time, and as stated above, this matter must also be taken into account the legal and regulatory changes that have been made since this judgment was rendered, as it is currently in accordance with the Union Motors ruling mentioned above. The official importer is obligated to provide warranty services even for vehicles purchased in parallel imports.