Provisional measures in the form of interlocutory injunctions, search, seizure and attachment orders, as more fully detailed in the responses to questions 5, 10 and 15, apply with regard to infringement of all IPRs. Provisional measures are governed by the inherent jurisdiction of the Courts pursuant to section 75 of the Courts Law as well as in accordance with Rules of Civil Procedure and case law. Provisional relief can be granted ex parte and prior to the commencement of the action, provided that the complaint is filed within seven days thereafter. In addition respondents, upon becoming aware of the ex parte order, may request an opportunity to challenge the continued enforcement of the provisional relief. In addition, in actions pursuant to the new Commercial Torts Law (such as trade secret and passing off actions), provisional remedies already extant in Israeli common law have been codified at sections 11-21 thereof. In either situation, the provisional remedies are available on an ex parte basis and generally require the posting of a security bond to protect the rights of defendants. In addition, where an order has been given ex parte, the party against whom such order has been made can seek a hearing in which to challenge the continued validity of that order.
[Answer 5: The courts may grant interim and permanent injunctions in all proceedings involving IPRs on either an ex parte or inter partes basis pursuant to the court's inherent jurisdiction (see, section 75 of the Courts Law) and from specific provisions contained in the individual intellectual property laws (see, for example, section 183 of the Patents Law; section 37(b)(2) of the Patent and Designs Ordinance; section 59 of the Trademarks Ordinance; section 6 of the Copyright Law and section 3A of the Copyright Ordinance; section 5 of the Performers’ and Broadcasters’ Rights Law; and Chapter 3 of the Commercial Torts Law). Interim injunctions remain in force until a final decision is given by the court or, alternatively, until the court decides to set aside the interim injunction due to change of circumstances. Shortly after the issuance of ex parte orders the respondent will be given an opportunity to be heard by the court with regard to the continued maintenance of such order. Some types of injunctions, which may be granted with respect to IPRs, include: (1) The Anton Pillar Order - Israeli courts may order, upon the application of the plaintiff, that the plaintiff be allowed to enter the premises of defendants and non-parties in order to and search and seize documents and evidence. Authority for the Anton Pillar Order is based in common law (the leading case is Rotem Insurance Co. v. Nahum Rowdner, et. al., Docket T.A. 798/91, motion 5530/91, District Court Reports, volume 3, 1992). With regard to unregistered marks and trade secrets the Anton Pillar case law has been codified pursuant to sections 16-17 of the Commercial Torts Law; (2) The Mareva Injunction - The Mareva injunction is an interim injunction aimed at "freezing" the defendant's assets until the conclusion of the hearing or alternatively to require him to post a security bond. The purpose of such injunction is to ensure that if a plaintiff succeeds in a case, all property in the jurisdiction will remain intact so that the plaintiff would be able to execute the judgment. The Mareva injunction was first introduced into Israeli common law based upon its English counterpart pursuant to which the courts have the authority to enjoin a defendant from parting with any assets and also to appoint a receiver whose functions are, inter alia, to gather up the defendant’s assets and protect them either post judgment or as an interlocutory measure (see e.g. Orkon v. Zaks, T.A. 2233/90, District Court Reports 1992, volume 1, page 184; see also chapters 10 and 28 of the Civil Procedure Rules and Rules 385-386 in particular). Additionally, Israeli courts have determined that this order shall apply to property situated outside the jurisdiction of Israel as well. An application for a Mareva injunction is filed in an identical manner to that used for filing an ex parte application for interlocutory injunction. Usually there is no hearing and the court's decision is based solely on the application itself and its supporting affidavit. A decision is granted usually no later than one or two days from filing of the application; (3) Attachment Order - Also pursuant to Chapter 28 of the Civil Procedure laws and in particular Rule 360 et seq., in an action for a sum of money or an action for a specific object is supported by document or by other prima facie evidence, then the court may grant a temporary attachment order over the assets in the defendant's possession and also over the defendant's assets in the possession of any other person, until the judgment is realized. Such an order is granted where the court is convinced that if the order is not granted, the execution of any judgment may be impaired. An application for an attachment order shall be made in writing and is usually heard ex parte. No attachment order may be issued unless the plaintiff has provided a guarantee at the instructions of the court, usually an undertaking and a third party security, to compensate the defendant for any damage caused by the order; (4) Account of Profits - A plaintiff may also apply to the Court for an order of an account of profits (see, section 223 et seq. of the Civil Procedure Rules). Once the order is granted, the Defendant will be required to report on all sales of the infringing items, consideration received, expenses incurred in manufacturing and marketing. A chartered public accountant will usually certify this report; (5) Stay of Exit - Israeli civil procedure (at sections 376 et seq. of the Rules of Civil Procedure) provides for the possibility to request a stay of exit from the territory of a defendant. If it can be proven that a defendant is about to leave Israel permanently or for a prolonged period and that his absence might impede the hearing of the case or the execution of the judgment, then the court may, by order, prohibit the defendant from leaving the country and also demand that his passport be handed over. An application for a stay of exit is heard inter partes, unless it can be proven that such hearing might cause irreparable harm. The applicant must provide a bond for any damages. In general, where the defendant is a foreigner, such an order may be granted only in extremely rare circumstances (for example, if he intends taking his assets out of Israel). Mention should also be made of the extensive authority of the Customs officials, detailed infra, to take immediate action against imports suspected of being infringing goods pursuant to section 200A of the Customs Ordinance. - Final remedies (1) Money Damages - A party claiming injury by reason of violations of intellectual property rights may apply to the Courts for a judgment of financial compensation from the infringer. The compensation may be with regard either to the owner's loss (damages) or to the infringer's profits. With respect to damages, the basic rule is that damages are aimed at putting the injured party, namely, the owner of the right, in the position he would have been had the infringement not occurred (see, for example, section 183 of the Patents Law; section 37(b)(2) of the Patent and Designs Ordinance; section 59 of the Trademarks Ordinance; section 6 of the Copyright Law and section 3A of the Copyright Ordinance; section 5 of the Performers' and Broadcasters' Rights Law; and, chapter 3 of the Commercial Torts Law. It should be noted that the aforementioned sections also provide a statutory basis for a variety of non-monetary final and interim remedies, such as those detailed below.) (2) Statutory Damages - Pursuant to section 3A of the Copyright Ordinance and section 5 of the Performers' and Broadcasters' Rights Law where there has been an infringement of rights in a copyright, performance or broadcast and specific damages have not been proven, the court may award compensation in respect of each infringement without proof of damage. Similarly, pursuant to section 13 of the Commercial Torts Law statutory damages may be awarded in respect of infringed confidential information and unregistered trademarks; (3) Account of Profits - A plaintiff may also apply to the Court for an order of an account of profits (see, section 223 et seq. of the Civil Procedure Rules). Once the order is granted, the Defendant will be required to report on all sales of the infringing items, consideration received, expenses incurred in manufacturing and marketing. A chartered public accountant will usually certify this report; (4) Permanent Injunctions - If plaintiff succeeds in the case, the Court usually grants a restraining order, permanently enjoining the infringer from continuing activities deemed infringing (see, Courts Law, section 75; Yotabin v. Mai, Docket no. 144/79, 34 Supreme Court Reports (2), p.344). As a rule, this order continues in effect until the plaintiff’s right expires; (5) Delivery up of infringing material - The remedy of delivery up is provided by case law or by specific statutes; see Yotabin v. Mai, id. For example, section 7 of the Copyright Law specifically states that all infringing copies and all plates used or intended to be used for production of such infringing copies, shall be deemed to be the property of the owner of the copyright who may take proceedings for recovery of their possession. Section 59A of the Trademarks Ordinance provides for similar relief with regard to trademarks. Importantly, the remedy of delivery up exists also with respect to infringement of performer’s rights; (6) Destruction of infringing goods - In certain circumstances the court may order the destruction of infringing goods (see for example, sections 7C of the Copyright Ordinance and 59A of the Trademarks Ordinance). With respect to counterfeit trademarked goods, new section 59A of the Trademarks Ordinance provides that the courts may not allow the defendant to possess the goods even if the defendant has removed the infringing marks, other than in exceptional circumstances. - Other remedies Punitive damages - Although punitive damages are generally not consistent with Israeli legal norms, in the case of patent infringement committed after the infringer had been warned against committing such an act of infringement, the Court may order the infringer to pay punitive damages (see, Patents Law, section 183c). Costs - In addition to the aforementioned remedies a successful plaintiff in an intellectual property related litigation may apply to the courts for the costs of the legal action itself. In making an order for costs, the court takes into account, inter alia , the value of the relief actually in dispute between the parties and the value of the relief awarded at the conclusion of the trial. The Court may also take into account the manner in which the parties conducted the trial. Where the court deems that a party unnecessarily prolonged the trial, it may, without relating to the outcome of the case, impose on that party the costs of the proceedings, in favor of the other party or the Israeli Treasury or both.]
[Answer 10: In respect of proceedings involving the infringement of any IPRs, Israeli courts have authority to issue a wide variety of interim relief including: injunctions; "Anton Pillar" search and seizure orders; "Mareva" orders aimed at freezing a defendant’s assets until the conclusion of the matter; Attachment orders over assets in the defendant’s possession and also over the defendant's assets which are in the possession of any other person, until the judgment is realized; Stay of exit from the country where the court is persuaded that defendant is about to leave the country for a prolonged period and such absence might impede resolution of the matter or execution of a judgment; and the Customs Authorities can detain the release of any goods suspected of infringing IPRs pending court action. Further details regarding provisional measures appear in the responses to questions 5 and 15.]
[Answer 15: Under new sections 7D(c) of the Copyright Ordinance, section 69A(c) of the Trademarks Ordinance and section 200A of the Customs Ordinance it is possible to apply for the suspension by the customs authorities of the release into free circulation in respect of goods which involve infringements of copyrights or trademarks. Pursuant to the above noted statute sections, the Director of Customs has statutory authority to delay the release of goods which are prima facie infringing either up his own initiative or upon the request of the copyright or trademark right holder. Similarly, pursuant to sections 2, 17 and 35 of the Consumer Protection Law and section 204 of the Customs Ordinance, customs officials have broad authority to seize any good which, inter alia, contains a false trade description or which may otherwise cause consumer deception in any material way The Customs Authorities, in reliance upon section 204 of the Customs Ordinance and section 35 of the Consumer Protection Law, exercise their authority over infringing goods which are in transit through Israel to a destination outside of Israel and to exports from Israel. Nevertheless, it should be noted that a footnote to Article 51 of the TRIPS Agreement provides that there is no obligation to apply customs suspension of release procedures to imports of goods put on the market in another by or with the consent of the right holder, or to goods in transit. The customs regulations do not apply to de minimis goods of a non-commercial nature contained in a traveller's personal luggage]