Even on the merits of the matter, the use of this description - parallel imports - even when it exists, can, in my opinion, at most, if at all, negate the possibility of misleading the consumer public regarding the defendant's being an official importer of vehicles and parts , but it does not provide a solution to denying the possibility of deception with regard to a possible mistake by consumers due to the use of the term "licensed" ("authorized service center"") in the description of a transaction of the defendant, a term that on the face of it appears to indicate that this is a business that is an entity that has received some kind of authorization for its activity. This is when there is no dispute that in the defendant's description of a transaction this expression - licensed - appears next to the name of the Toyota company and next to the company's logo, in various design variations. This, in my opinion, misleads the public into believing that this is a licensed garage that has received the plaintiff's permission to operate and is presumably supervised by it.
It should be noted that the explanation given by the defendant that this expression - licensed - reflects the fact that the garage is licensed by the Ministry of Transport or the corresponding importer, does not appear in most of the publications. In any event, in view of the aforementioned attachment to the plaintiff's name and the company's logo in many of the defendant's publications, including on its home website, this fact, in itself, even if it is true on its merits, is not sufficient to dispel the danger of misleading that derives from the visibility and content of the publications and the use of the term "authorized" in their framework.
- And to be precise. The consumer's ability to distinguish and choose between receiving services from an authorized garage on behalf of the plaintiff or the official importer and receiving the service from a garage licensed by the Ministry of Transportation or the corresponding importer is important. In the framework of the present proceeding, it was proven that the plaintiff supervises its licensed garages, conducts professional training and provides ongoing professional support to the authorized agencies on its behalf, through the official importer in Israel - Union Motors in all matters relating to ongoing maintenance, repair of malfunctions and other issues relating to the vehicles manufactured by it. This is in contrast to the defendant's claims regarding the plaintiff's lack of a unique reputation in these areas. It is not superfluous to note in this context that even in the decision of the Registrar of Patents mentioned above, it was determined that the plaintiff operates in Israel in these fields, through subsidiaries or licensed companies on its behalf (decision of the Registrar of Patents, paras. 38-42). The aforesaid, of course, does not indicate the defendant's lack of expertise in handling Toyota vehicles or to negate the existence of supervision of the services provided by a parallel importer or through the authorization and supervision of the Ministry of Transport. The importance lies in providing correct and complete information, which is not misleading, in order to enable the consumer public to make its decisions in an informed manner.
- And to be precise. I am aware of the defendants' claim that no direct testimony was presented in court on behalf of the plaintiff on behalf of any person who claimed that he himself, in practice, had indeed made a mistake regarding the defendant's status and that when he applied for services from the defendant he mistakenly believed that they were provided by an authorized garage of the plaintiff or the importer on her behalf. However, as reviewed above, firstly, in accordance with the case law, it is sufficient to prove the potential for deception on the basis of the picture of evidence presented and secondly, testimony in this regard was given on behalf of the prosecution witness Maor, who testified about customer requests to the authorized garage he manages in a nearby city (in Nes Ziona) and reports that he heard from customers that they mistakenly believed that the defendant's garage was a business related to the plaintiff or an authorized person on its behalf. Indeed, in evaluating this testimony and its weight, it must be taken into account that Maor is the owner of a competing business in the same area in which the defendant's transaction operates, and is also authorized by the plaintiff. However, my impression from the testimony itself is that it did not include question marks on the level of reliability. Therefore, even if a careful assessment of the weight of this testimony is required, it is not weightless, and as stated, it fits into the overall picture of reasons for the question of the potential for deception. It should be remembered that on the other side and on the factual level, there is only the testimony of the defendant himself, Raz.
- I am correct in assuming that the defendants' claim that the purchase of a vehicle transaction is a significant transaction for most consumers, especially in view of the significant financial scope, and therefore it can be assumed that car buyers conduct an in-depth examination regarding this purchase, including in terms of the business from which they will choose to purchase their car. However, in view of the above, I am of the opinion that the potential for deception exists due to the description of the business as stated above, and in accordance with the Tommy Hilfiger rule, even if this initial mistake is corrected later after entering the business and after the customers insist that it is a parallel import business and not an authorized agency of the plaintiff, it should still be regarded as an improper deception in terms of the sponsorship test.
- It should also be noted in this context that the examples that Raz attached to his affidavit are not useful to the defendants in my opinion, and certainly not in a real way. These are cases in which the word "Toyota" is not part of the name of the business and the Toyota logo is not used in a way that can be mistakenly concluded that the garage is an authorized dealership on behalf of Toyota. In addition, in none of these publications does the phrase "authorized importer" or "authorized parallel importer" appear, so that the fear of mistaken consumers that these are businesses operating in connection or subordination to the plaintiff is not real, in my opinion.
- It is also clarified that I do not believe that the evidence of the experts reviewed above, which deals with the surveys conducted by them, is sufficient to negate the potential for deception in the present case, and I am of the opinion that the results of the two surveys indicate the potential for deception. As stated above, even according to the findings of the survey conducted by Prof. Katz, a significant proportion of about 18% of the respondents mistakenly believed that the defendant was an authorized marketer of the official importer, and 20% of the respondents believed that they did not know how to answer the question addressed to them in this matter. In other words, 38% of the respondents in the survey conducted by the defense expert were misled by the defendant's publications or did not know what their correct content was, and were unable to determine that it was a business that was not authorized by the plaintiff. Already this figure, which in my opinion is far from a negligible figure, indicates the existence of problems in the defendant's publications and a real potential for deception as to the description of the defendant's transaction to the general public. It should be noted and emphasized that the data of these responses were collected regarding a "closed" and direct survey question, since, as quoted above, the question addressed to the respondents was whether the aforementioned publication was on behalf of the parallel importer or the official importer, a question that invites the respondent to a specific examination of the matter within the advertising text, an examination that it is doubtful that he would have conducted in an open and occasional reading without the focus included in the question.
- The examination of the expert witnesses revealed that many of the deficiencies pointed out by Prof. Katz in his opinion regarding the survey of the plaintiff's expert, Ms. Goldberg Anavi, also exist in the survey conducted by him, and that the prosecution's expert, Ms. Goldberg, provided a sufficient explanation or response to some of his claims.
Thus, for example, in both surveys the analysis of the results was not included in the view of the question of whether the respondents owned a vehicle, whereas in the Katz survey a question on this matter was presented to the respondents but only as a background given and without including the answers on this matter within the scope of analysis and segmentation of the results (Prov. pp. 59, 2-15, pp. 95, 13-18).