The second - what is the scope of the alleged infringement and what actions weaken the protection of the trademark owner's rights, including an examination of whether these are various infringements that have a separate remedy or whether they are a single infringement with several appearances, which grants the plaintiff only one remedy;
Third, what is the proper remedy in this case for the alleged infringements, insofar as they were recognized as such?
D2. The Normative Framework
- The normative framework relevant to the examination of the activity of the parallel importer relates to three areas of law that were even at the basis of the claim in the present proceeding - the first and the main one, trademark law; the second, the law of commercial torts; The third is the laws of enrichment and not in law.
- Trademarks - With regard to the framework of the law regarding trademarks, section 46(a) of the Trademarks Ordinance states that the owner of a legally registered trademark has the right to "exclusive use" of the trademark in relation to the goods in respect of which the trademark is registered and in relation
Section 47 of this Ordinance provides as follows: "Registration under this Ordinance shall not prevent a person from making true use of his name or the name of his business, or the geographical name of his place of business, his or of his predecessors in the business, or from using a true definition of the essence or quality of his goods."
In the Toto Zahav case, the court discussed the limits of this section 47 of the Ordinance and the limits of the "true use" protection set forth therein. The court established three auxiliary tests, which originated in American case law and were intended for the purpose of examining and determining when a use made of a trademark in relation to an original merchandise does indeed constitute a true use and falls within the scope of the protection of law: the first test is called the "identification test" and it relates to the question of whether the product is not easily identifiable without the use of the trademark; the second test is called the "use of the necessity test" and concerns the question of whether the use of the trademark is made to a degree that does not exceed what is required for the identification of the product; the third test is the "Sponsorship Test" in which it is examined whether the use made of the trademark does not indicate sponsorship that the trademark owner supposedly gave to its user.