He further argued that the survey question itself was flawed since the respondents were not given the opportunity to reply that the business that was the subject of the advertisement presented to them was a parallel importer and that the question should have been whether the advertiser was licensed by the official importer or the parallel importer, as was asked in the survey conducted by him (paragraphs 3-4 of the Katz opinion).
As will be explained below, I have found no basis to prefer the findings of the survey conducted by Prof. Katz to those of the prosecution's expert, Ms. Goldberg Anavi.
- After considering the overall picture of the parties' evidence, the main points of which were reviewed above, including the experts' surveys and their results above, including the professional mutual criticism between them, I find that in her claim of misleading the consumer public attributed by her to the defendants, the plaintiff has raised the burden of proving this claim and that it has been sufficiently proven before me that the consumer public is indeed liable to mistakenly believe that the defendant's transaction is authorized by the plaintiff or the importer on its behalf or any other supervised entity by her. This is due to the manner in which the defendant presents itself in the signage and in the advertisements and on the additional platforms that were presented in the present proceeding.
My reasons for this conclusion, with their cumulative weight, will be explained below.
- First, mention will be made of the ruling in the Tommy Hilfiger case, regarding the importance of the name of the business and what is described therein for the purpose of examining a claim of misleading consumers, as well as with regard to the fact that the court's examination is made regarding the existence of initial deception , even if it is later amended, and that this examination examines the existence of a concern of the potential for deception -
"As a rule, the name of the business has considerable significance when it comes to creating a concern about the impression of sponsorship by the trademark owner. The boasting of this name might have attracted buyers to the business in the belief that it was the official importer of Tommy Hilfiger products to Israel, even if after they had come to the business itself they would have realized that this was not the case: after they came to the business on a false basis, the actual deception had already been committed. Therefore, in my opinion, the use of the name "Importer's Warehouse" when it appears with only the name "Tommy Hilfiger" next to it is liable to create potential misleading. This name includes in its content the use of the informant, which is ostensibly directed at the connection with the importer of the information, i.e., Tommy Hilfiger's official agent in Israel" (v. 69).
- In the present case, the use of the plaintiff's trade name (Toyota or TOYOTA) alongside the geographical location indication only (Rehovot) - "Toyota Rehovot" or "TOYOTA Rehovot" and together with the plaintiff's logo, raises a concern, which in my opinion is clear, that the reasonable consumer will mistakenly believe that this is an authorized car dealership of the plaintiff, located and operating in the city of Rehovot. It should also be noted in this regard that from the evidence submitted in the present proceeding, it appears that garages that are indeed authorized agencies of the plaintiff advertise this fact in a publication very similar to that used by the defendant - "Toyota Rehovot" (see, for example, P/9 - P/10 - "Toyota Beit Shemesh", "Toyota Jerusalem" and others).
- It should be emphasized in this regard that, as Raz confirmed in his cross-examination, even in the search bar on the Google search engine, the caption "Toyota Rehovot" sometimes appears without the additional caption - "parallel imports" (Prov. 135, paras. 5-19). Even in a search on the Waze navigation app, the words "parallel imports" appeared, even in a smaller font, inside the name of the business but not in the name of the business itself, which includes only the bold inscription - "Toyota Rehovot". Similarly, the defendant's website (www.toyota-rr.co.il) itself is also characterized by inconsistency in this matter, when in some cases the name of the business is mentioned only as "Toyota Rehovot", without any attachment of a caption clarifying that it is a parallel importer (see screenshots from the defendant's website - P/7 vs. P/8, Prov. p. 139, s. 25 - 141 s. 18).
- In any event, the addition in the publications and the description of the defendant's transaction on the various platforms, according to which it is a business that is a parallel importer, as opposed to an official importer of the plaintiff or an authorized garage on its behalf, beyond the fact that, as stated above, it is partially and inconsistently included in the description of the business in various places, even it is not sufficient on its merits, in my opinion, to negate the potential for deception.
As was ruled in the Tommy Hilfiger case, this is not a term whose exact meaning is necessarily known and clear to the general public - "the consumer public, or at least part of it, is not necessarily aware of the exact meaning of this technical term" (Tommy Hilfiger, para. 93). As explained below, evidentiary support in this matter is found in the data of the surveys conducted by the parties regarding the case at hand, as explained below.