Under these circumstances, the defendants should have at least entered into a dialogue with the plaintiffs, and tried to reach agreements with them. The plaintiffs objected to the sale of products bearing their mark in food chains. The products may have been sold through agreed third parties. It is possible that other commercial agreements could have been reached. However, the defendants actually ignored the warning signs, and decided to continue selling the products they purchased. In doing so, they took a risk. Indeed, to the right of the plaintiffs are their intellectual property rights. These rights are also protected in Israel. The plaintiffs took the trouble to register a trademark with all that was implied. and the infringer of the trademark must take into account that the remedies available against him in accordance with section 59 of the Trademarks Ordinance [New Version], 5732-1972 (hereinafter: the Ordinance) [...]. In the circumstances of the case, it appears that the remedy of restitution of profits is indeed the proper remedy" (emphases added).
- I accept this determination for our case as well, with the necessary changes.
- In this regard, I found it to be noted that not only did the defendants have clear indications regarding the plaintiffs' position and their demand to stop distributing and marketing the brand's products without a lawful license, after the agreement was canceled and expired, but also in the decision of the Honorable Justice Altuvia in the previous suit in the motion for an injunction dated November 4, 2015, it was noted (p. 5, paras. 4-5) that "the respondent [Don Gilley - M.A.A.] would do well." If it considers its conduct with respect to future orders and their supply at the time intervals indicated by its manager [Mr. Ginley-M.A.A.] in his testimony." Despite these warning signals, Don Geely continued to import and sell the plaintiffs' brand products, all without a valid license agreement.
- When the agreement was cancelled by the plaintiffs and after a period of six months had passed according to the license agreement, at the very least, all the defendants should have stopped marketing or selling the plaintiffs' branded products. The defendants claim that after receiving the notice of cancellation of the agreement, they ceased to produce new products bearing the plaintiffs' brand and that they only received goods that had been ordered up to that date and marketed and sold existing inventory, and in the absence of an injunction there was no impediment to doing so (paragraph 13 of the defendants' summaries).
However, the absence of an injunction does not constitute a confirmation of continued infringing commercial activity, and certainly the absence of an injunction does not constitute confirmation of the legal situation prevailing between the parties. This is certainly true where there is a weighty legal dispute between the parties that is well known to the defendants. There is no room to agree with the conclusion that the defendants' disregard of the plaintiffs' demands will enable them to continue to increase their profits, all while there is no valid license agreement between the parties, and when the defendants are at least aware of the problematic nature of continuing their commercial activity in this manner. This is certainly after the court's decision in the previous lawsuit on the application for an injunction.
- Infringement of a registered trademark is defined in Section 1 of the Trademarks Ordinance [New Version], 5732-1972 (hereinafter: the "Trademarks Ordinance"), where for our purposes the first two alternatives in the definition, which relate to a registered trademark, are relevant:
"Violation" - use by someone who is not entitled to do so -