In addition, since the decision of the Registrar of Patents was issued, permission to use has even been registered in favor of Toyota Europe, and therefore there is no basis for an attempt to revisit an issue that has already been decided by a court that is given exclusive authority to examine the validity of trademarks. In any event, even on the merits of the matter, the defendants have not been able to prove that the plaintiff does not make use of these marks in Israel.
- The defendant presents itself as an agency and service center operating under the auspices of Toyota - there is no dispute that the defendant is not an authorized dealership of Toyota, but rather is engaged in the sale of imported Toyota vehicles in parallel and in providing service and maintenance to Toyota vehicles, without the supervision or authorization of the plaintiff or any of its authorized agencies.
The agencies authorized by the plaintiff are those supervised by Union Motors through training programs and designated certification programs for mechanics, technicians, foremen and service consultants. This is in accordance with the plaintiff's required content and methodologies, and while conducting annual refresher and competency exams and tests, as well as providing ongoing professional assistance and support in solving professional malfunctions and problems.
On the other hand, the defendant, which is not an authorized dealership on behalf of Toyota, is not required to meet the conditions, standards and standards of the plaintiff as a condition for providing service to its customers, and its employees do not receive the aforementioned professional training and assistance from Toyota and are not supervised by it or on its behalf.
Notwithstanding the aforesaid, being aware of the great reputation and trust that consumers purchase for the services provided by Toyota and its authorized agencies, the defendants create false representations to the public by presenting themselves as a sales and service center licensed by Toyota, even though they are not. This is done through the use of incorrect and misleading names, designs, images and slogans in the following ways: (a) using the name of the business - "Toyota Rehovot" and "Toyota Rehovot"; (b) Use of the domain name on the Internet - Toyota-rr.co.il; (c) the design of the service and sales center itself in a manner that is deceptively similar to the design existing at Toyota authorized dealerships; (d) the use of publications with almost identical visibility to that of the plaintiff and her authorized agencies; (e) Use of images and materials extracted from the websites of the plaintiff or authorized agencies on its behalf.
- The plaintiff has the exclusive right to use the trademarks - Section 46(a) of the Trademarks Ordinance [New Version], 5732-1972 (the "Trademarks Ordinance") grants the owner of a trademark the right to exclusive use of the trademark on the goods in respect of which the mark was registered and in all matters relating thereto. The case law held that the protection of a "recognized trademark" is even broader.
The exception to this rule set forth in section 47 of the Ordinance does not exist. This exception allows a person who is not the owner of the trademark to use the trademark when it can 'genuinely' define the essence of the goods or service provided by him. The burden of proving the applicability of this exception rests on the shoulders of the person claiming this protection.