RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/192
18 July 2000
(00-2939)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Responses from Israel to questions posed by Australia,
the European Communities and their member States, Japan and the United States
By means of a communication from the Permanent Delegation of Israel dated 22 June 2000,
the Secretariat has received the following responses to questions posed by Australia, Canada, the
European Communities and their member States, Japan and the United States as circulated indocuments IP/C/W/177, IP/C/W/184, IP/C/W/178, IP/C/W/173 and IP/C/W/174 respectively.
_______________
AUSTRALIA
A. C
OPYRIGHT AND RELATED RIGHTS
1. Please provide any further information, where possible, on the effective meaning and scope of
the term "compilation" in the definition of "literary work" under section 35(1) of the Copyright Act
1911.  Does it extend to compilations of data and other material in accordance with Article 10.2 of
the TRIPS Agreement as well as collections of literary or artistic works under Article 2(5) of theBerne Convention?  To what extent does it in practice provide protection for multimedia works?
In conformity with Articles 10.2 of the TRIPS Agreement and Article 2(5) of the Berne
Convention, the Israel Copyright Act, 1911 in Section 35(1), lists compilations as a type of "literary
work" for purposes of copyright protection.  In State of Israel v. Akhiman , C.A. 136/71, 26 (2) S.Ct.
259, the Supreme Court stated that a compilation, th e selection and arrangement of which resulted
from labour, skill and intelligence merited copyright protection.  Nevertheless, purely factual material
contained therein would be public domain.
With regard to multimedia works, Israel copyrigh t law is "media neutral" in the sense that the
work is protected regardless of the medium in which it is embodied.  Hence, to the extent that a
multimedia work is a compilation of works the compilation as a whole would benefit from copyright
protection.  For example, an aural or audio visual compilation, such as a CD version of an
encyclopaedia that includes narration, music and ph otographic images, may be entitled to copyright
protection on each constituent portion as well as with respect to the compilation as a whole.
 
2. To what extent does current copyright protection in Israel cover the use and dissemination of
copyright works on digital networks such as the internet?  Are there any specific provisions in
copyright law concerning the digital on-line environment, and are there any significant judicial or
administrative decisions with bearing on this issue?IP/C/W/192
Page 2
Israeli copyright law is "technology neutral" in the sense that it contains no specific references
to any specific technologies, digital or otherwise, however any unauthorized activities which occur in
an internet medium would be treated just as if they were occurring in more conventional mediums.
For example sale of infringing software over the internet would constitute a violation of copyright
law.  There are not yet any specific court rulings with regard to digital environments, but there are
some pending cases.
3. Are there any specific judicial rulings, policy statements or other guidance on the nature of
copyright protection extended to databases and computer software under Israeli copyright law?
In coordination with the trend set in earlier case law, the Copyright Ordinance was amended
in 1988 by the addition of section "2A" which provides that computer programs are to be deemedliterary works for purposes of copyright and as such are fully protected under copyright law.  With
regard to data bases, there is no sui generis law regarding database protection, however to the extent
that a database is a "compilation" it is eligible for copyright protection.
4. What provisions or allowances are there fo r Government use of copyright works, including
computer software, and is there a mechanism for compensating the owner of copyright in any such
case?
Israel copyright law does not contain any special allowances for government use of copyright
works.
5. Please describe the effective scope of limitations or exceptions are provided to the exclusive
rights established under the law of copyright and related rights, provisions for compensation or
equitable remuneration when such limitations or exceptions apply.  In particular, please indicate
what judicial or other legal or administ rative guidance is available to determine:
(a) the scope of allowable educational broadc asts under Section 7(A) of the Copyright 
Ordinance
Section 7(A) of the copyright Ordinance was in force during a limited period until March 31,
1974 at which time it expired.  The source of this misunderstanding appears to be from the English
language translation of the Copyright Ordinance which was notified to the WTO.
(b) the meaning and scope of the phrase "private and domestic" in section 3C of the
Copyright Ordinance.
This provision was added in 1996 and since then no case law appears to have evolved which
would give further explanation to the interpretation of this section.
(c) the scope of "fair dealing......for the pur poses of private study, research, criticism,
review or newspaper summary"(section 2(I)(i) Copyright Act 1911)
In Geva v. Walt Disney Co ., Case no. 2687/92, 48(1) Supreme Court Reports 251
(30 December 1993), which is the leading case to date regarding fair dealing, the Supreme Court
adopted the "four step test" fair use approach emanating from US copyright law.  In particular, the
Supreme Court held that the four main considerat ions for determining fair dealing include:  the
purpose and character of the use;  the nature of the copyright work;  the substantiality of the portionused in relation to the copyright work;  and the effect of the use upon the potential market for the
copyrighted work.
(d) Limitations or exceptions that apply to computer software protected by copyrightIP/C/W/192
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Beyond the exceptions generally applicable to works, there are no limitations or exceptions
which apply to computer software protected by copyright.
B. GEOGRAPHICAL INDICATIONS
6. Is there a significant difference between the effective scope of "geographical indication" and
of "appellation of origin" under the Appellations of Origin (Protection) Law 5725-1965 as amended?
Is it possible that a particular reference could fall within both definitions and if so, how is this
resolved?  In what circumstances is it possible to protect the geographical indication of a foreign
country as a registered appellation of origin under this law?
(1) There are differences between "appellations of origin" and "geographical indications", each of
which are defined terms which originate in the respective international treaties which define their
scope and application.  "Appellations of origin" were introduced into Israeli law in 1965 pursuant to
Israel "s obligations under the Lisbon Agreement for the Protection of Appellations of Origin and their
International Registration (hereinafter - Lisbon) and "geographical indications" were introduced into
Israeli law in order to comply with TRIPS.  C onceptually the differences between the two are not
great. However, the primary differences between them are as follows:
(a) Geographical indication include indications where a given "quality", "reputation" or
"other characteristic" of the good is essentially attributable to its geographic origin, whereas
appellations of origin include indications (appellations) where the "quality" and"characteristics" of the product bearing the indication (appellations) are due exclusively or
essentially to the geographic environment, including natural and human factors.  Hence, a
"geographic indication" can be based on "reputation" whereas an "appellation of origin" can
not.
(b) Israeli law will recognize "geographical indications" from all members of the WTO,
whereas foreign "appellations of origin" will only be registered if their country of origin is a
member of the Lisbon Agreement.
(c) Pursuant to Article 23 of the TRIPS Agreement, geographical indications for wines
and spirits enjoy protection against any adverse use even if such use does not mislead the
public, in particular, even where the true origin of the goods is indicated or the geographicalindication is used in translation or accompanied by expressions such as 'kind,' 'type,'
'imitation,' or the like, however, in accordance with Article 22 of the TRIPS Agreement,
geographical indications for all other products are protected only against misleading adverse
use.  In contrast, the scope of protection for "appellations of origin", regardless of product
type, is like that pursuant to Article 23 of the TRIPS Agreement.
(d) Certain exceptions apply to the scope of a geographical indication (e.g. those set forth
in Article 24 of the TRIPS Agreement) which may not exist with respect to "appellations of
origin".
(e) "Appellations of Origin" undergo examination and are published for opposition prior
to registration in Israel and as such enjoy a rebuttable presumption of validity for as long as
they are registered, whereas geographical indications arise without examination proceedings,
but bear the burden of proof to assert their validity when challenged.
(f) Actions for invalidation of a "geographical indication" may be heard by Israeli courts
at any time, whereas subsequent to registration in Israel of a foreign "appellation of origin" its
validity can only be challenged in its country of origin and not in the Israeli courts (howeverIP/C/W/192
Page 4
there is currently a bill pending in the parliament which would give Israeli courts jurisdiction
to hear affirmative defences claiming invalidity of foreign "appellations of origin").
(2) A sign which is protected in Israel as a "geographical indication" could also qualify as an
"appellation of origin" provided it meets the necessary eligibility criteria, undergoes examinationproceedings and originates in a country which is a member of Lisbon.  In such circumstances it would
be entitled to overlapping protection.
(3) Same answer as (2) above.7. What is the consequence of providing that a misuse of a geographical indication under
sections 21A is an infringement of an appellation of origin under sections 22 & 23.  Does theoperation of section 21B in "'deeming" a misuse to be an infringement of an appellation of origin
differ from section 21A?
Both sections 21A and 21B of the Appellations of Origin and Geographical Indications
Protection Law incorporate by reference the remedial and procedural aspects of sections 22 and 23
and was intended merely as a drafting convenience.
C. P
ATENTS
8. Is patent protection for plant and animal inventions available under Israeli law?  Are there
legal or administrative guidelines on the meaning of the phrases "varieties of plants or animals" and"micro-biological organisms not derived from natur e" in section 7(2) of the Patents Law 5727-1967?
Yes.  Patent protection is available for plant and animal inventions in Israel provided that the
invention meets the eligibility criteria set forth at section 3 of the Patents law.  Section 3 states:  "An
invention, whether a product or a process, in any technological field, which is new, useful andsusceptible of industrial application, and which involves an inventive step, is a patentable invention."
There are no written legal or administrative guidelin es regarding the meaning of the phrases "varieties
of plants or animals" and "micro-biological organisms not derived from nature".
9. Beyond the specific provisions of the Patents Law (in particular Articles 1, 53 and 54A), is
any additional legal guidance available (such as applicable judicial decisions) to illustrate what acts
are recognized as permitted limitations or exceptions to the exclusive rights of a patent holder?
There is not yet any case law which further illustrates the provisions noted in the question.
10. In what circumstances does Israeli law permit use of a patented invention without the
authorisation of the patent owner, including use by  the government?  In what manner is the patent
owner compensated for such use? In how many cases have compulsory licences been granted, and
how many permits have been granted for State use of patented inventions?
In accordance with the TRIPS Agreement, the Israel Patents Law does permit use of a
patented invention without the authorization of the patent owner, in exceptional circumstances andupon equitable remuneration to the patentee by a compulsory licensee or by the government.  Firstly,
pursuant to Chapter Six of the Patents Law, an invention can be exploited by the State, subject to
payment of royalties to the patentee, where it is "...necessary so to do in the interests of the defense of
the State or the maintenance of essential supplies and services."  To the extent that such authorizations
have occurred, if at all, (no statistics are mainta ined) compensation issues have thus far been resolved
voluntarily between the parties without need of ou tside intervention.  Secondly, compulsory licences
for non working (importation of the patented product is now considered as a form of local working of
the patent) of a patented invention are available, in very limited circumstances, and in accordanceIP/C/W/192
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with the provisions of Article 31 of the TRIPS Agreement.  Where a compulsory licence has been
granted, the patentee may apply for review of that licence on the ground that the circumstances which
existed at the time of its grant have changed or that the licensee has infringed any of its conditions
(section 127).  Indeed, in December 1999, the compulsory licence sections of the Patents Law were
amended in order to conform with the TRIPS Agreement.
Detailed statistics of the sort requested in the above question are not maintained.  However,
approximately five compulsory licences were gran ted during the 1990s (one of which was overturned
on appeal).  There are no compulsory licence applications currently pending and given the 1999
changes to the Patents Law it is unlikely that any compulsory licence applications will be made in the
future.  We are not aware of  any permits to use an invention or compulsory licences ever having been
made, or sought, in favor of the government.
11. Please elaborate on the interpretation in Israeli law of the phrase "not fair under the
circumstances of the case, do not take account of th e public interest and arise essentially out of the
existence of the patent" in section 119(2)?
Interpretation of section 119(2) appears to have occurred rarely.  For example in, In the
Matter of Compulsory Licence for Patents 13043 and 15525, Decisions of the Commissioner of
Patents, Part II, 1971-1974, 32 at 68 described this section as an unfair licence restriction and
analogized to a voluntary licence which contained such extreme restrictions as to be tantamount to
non working of the patent.  (In this case the compulsory licence was granted, though principally onthe ground that there was no local manufacture of the patented product.)  In the Matter of Compulsory
Licence Application 24187, Teva v. Ciba-Geigy , Decisions of the Commissioner (1978-1984), Vol. I,
page 5, 6, 24, Commissioner reasoned that refusal to grant a voluntary licence on reasonable term for
local manufacture was a violation of section 119(2).  Prior to the implementation of TRIPS,
compulsory licences were generally granted on the basis of either failure to supply the local market orfailure to manufacture the patented product in Israel.  Notably, the latter ground, subsequent to TRIPS
implementation, is no longer a basis for the grant of a compulsory licence.
D. U
NDISCLOSED INFORMATION
12. To what extent do the provisions of Chapter Two of the Commercial Torts Law 5759 – 1999
concerning protection of undisclosed information apply to actions by or on behalf of the government?
Chapter Two of the Commercial Torts Law, 5759 - 1999 applies to private and governmental
entities.  Additionally, trade secret information held by a governmental authority and its employees is
not open to public inspection (see section 23B of the Law for the Protection of Privacy 5731-1981;
Rule 42.5 et seq.  of the Civil Service Bylaws).
E. TRADEMARKS
13. Are there any specific provisions in Israeli laws and regulations, or any significant judicial
decisions, with bearing on the use of trademarks or geographical indications on digital networks such
as the Internet?  Are there any relevant decisions or other legal provisions concerning the
relationship between internet domain names and trademarks or geographical indications?
There are no specific laws or regulations dealing with the use of trademarks or geographical
indications on the internet, however Israel trademark and geographical indication law are "technology
neutral" and infringements occurring within the internet medium would be actionable to the extent
they would be actionable were they to occur in  more conventional mediums.  For example, in Cellcom
Israel Ltd. v. T.M. Aquanet Computer Communications Ltd., et al, Tel Aviv District Court, motion
number 10909/99 (Sept 8.9.99), in what appears to be the only decision thus far related to conflictsIP/C/W/192
Page 6
between domain names and trademarks, where the defendant's secondary level domain name was
identical to plaintiff's trademark, albeit in respect of different services, the court granted preliminary
injunctions against the defendant and the Domain Name Registry, enjoining further use of the
disputed domain name, on the grounds that plaintiff had made out a prima facie cause of action and
shown likelihood of success on the merits under legal theories of passing off and conversion ofgoodwill.  In addition, authority for registration of some second and third level domain names has
been delegated from IANA (Internet Assigned Numbers Authority) to the Israel Internet Society
(ISOC), a non profit organization.  Registrants obligate themselves contractually to abide by ISOC
rules including those for dispute resolution which rules are modelled upon those set forth by ICANN
(Internet Corporation for Assigned Numbers and Name s).  To date, a few domain disputes have been
decided through the ISOC authorized dispute resolu tion mechanism.  For example, one panel ordered
that the domain name <waltdisney.co.il> registered by an individual with no relationship to Disney
Enterprises, Inc., be transferred to Disney Enterprises, Inc. on the grounds that respondent's
registration was made in bad faith and in violation of trademark norms.
F. C
ONTROL OF ANTI -COMPETITIVE PRACTICES
14. Does Israeli law provide for any specific measures concerning practices that constitute an
abuse of intellectual property rights?
The Restrictive Business Practices Law, 5748 - 1988, which applies to all aspects of the
economy, is intended to prevent restrictive trade practices and abuses of monopoly power.  In general
intellectual property rights are exempt from being deemed an unlawful restrictive arrangement,provided that:  the arrangement is between the owner of a said intellectual property right and the
person who is given the right to use it; and, that if the intellectual property right is registered if
registration is required to create the right.  Inte llectual property rights are subject to the law's
regulation of abusive monopoly power.  In light of this section the anti trust commissioner has alleged
that a certain collective rights management organization may be abusing its monopoly position andshould therefore be subject to the oversight of the anti trust commissioner.  That matter is currently
sub judice before the Anti Trust Court.
CANADA
1. What recourse do right holders have in respect of wilful trademark counterfeiting or
copyright piracy on a commercial scale, as required by Article 61?
See the responses to questions 60 and 61 from the United States below.
2. What protection does your Copyright le gislation afford to foreign works?
See the response to question 1 from Japan below.IP/C/W/192
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EUROPEAN COMMUNITIES AND THEIR MEMBER STATES
A. C OPYRIGHT AND RELATED RIGHTS
1. Does copyright subsist in a computer program under the same terms as literary works?
Please explain how the answer is de rived from the notified legislation.
Yes.  See section 2A of the Copyright Ordina nce which states: "For purposes of copyright,
computer software shall be treated like a literary  work, within the meaning of that term in the
Copyright Law, 1911.
2. What is the legal status of the different documents notified as forming Israel's copyright
regime?  Are they all legally binding and do recent laws supersede older provisions in cases of
inconsistency?
The Copyright Act, 1911 as amended to date, the Copyright Ordinance as amended to date
and the Performers and Broadcasters Rights Law as amended to date constitute the cumulativeprimary legislation in the area of copyright and related rights.  Orders and Regulations constitute
secondary legislation and are subject to primary legislation.  All primary and secondary legislation
notified to the WTO has been in force at least since 1 January, 2000 (notably, with the exception of
the TRIPS implementation amendments, the vast majority of copyright legislation has been in place
for many years).
3. Please provide recent examples of criminal penalties for copyright infringement.
Such statistical information is not readily available and not centralized in any one agency. For
example some of the prosecutions are carried out through use of private criminal complaints institutedby the plaintiff himself, while others are handled through the various specialized intellectual property
crimes police units situated in different parts of Israel.  Still other prosecutions are being handled by
various  regional offices of the State's Attorneys Office.  The investigations and prosecutions have
been initiated against  small store owners who trade in counterfeit items to manufacturers of such
items.  As a result of the State's investments in enforcement infrastructure in 1999 and the first half of
2000, a great many indictments have been filed.  Thus far some have ended in convictions with six to
twelve month suspended jail sentences and fines against for example  persons dealing in counterfeitgoods, and other cases are still pending.
4. Does Israel's law provide for criminal penalties against parties who knowingly use illegal
software?  If not, why?  If so, under which statutory provisions?
Pursuant to section 3 of the Copyright Ordinance it is a criminal offence, inter alia , to make
an infringing copy of a work (e.g. copyrighted software) in order to sell or rent it; or, distributes
infringing copies of such a work for purpose of trade or to such an extent as to affect prejudicially the
owner of the copyright as well as other offence which are not relevant to the instant question.  To the
extent that "use" involves making a copy or di stributing copies in a manner which maintains the
elements of the offences, it will be subject to criminal sanctions.  Notably, the TRIPS Agreement does
not require member states to provide for criminal penalties against parties who knowingly use illegal
software, but rather Article 61 "Criminal Procedures" only requires member states to provide criminal
procedures and penalties at least in cases of "copyright piracy on a commercial scale".  Note 14 to
Article 51 defines "pirated copyright goods" as goods which are copies made without the consent ofthe right holder or a person duly authorized by him in the country of production and which are made
directly or indirectly from an article where the making of that copy would have constituted and
infringement of a copyright or a related right under the law of the country of importation.  Hence,IP/C/W/192
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Article 61 is quite limited and requires criminal penalties only in instances of making commercial
quantities of unauthorized copies.
5. Are statutory damages for breach of copyright applied by the Supreme Court on a per copy or
a per title basis?  If on a per title basis, how does this deter piracy on a commercial scale?
The issue of statutory damages has been addressed several times by both the Supreme Court
and the lower courts.  An amalgamation of the case law suggests that statutory damages are factored
primarily, though not necessarily on a per title basis and are meant to be primarily compensatory and
evidentiary in nature in the sense that it crea tes a presumption of damages without requiring the
plaintiff to prove his actual damages.  Nevertheless, where the infringement was intentional several
courts have applied the maximum amount of permitted statutory damages in an effort to fashion aremedy which is partially compensatory and partly to serve as a deterrent.  See e.g.,  Saggi v. the
Estate of Ninyo , C.A. 592/88, 46(2) S. Court Rep. 254, 272; Sadar Machsheveim Ltd. v. Electo, C.C .,
Nazareth Dist. Court 831/90, 5754 (1) Dist. Ct. Rep. 177, 187.  Additionally some courts appear to be
moving towards a per copy basis. See e.g. Tal Gal Cohen v. Amir Berman , District Court, T.A.
Docket no. 070422/99, (11.6.2000).  Accordingly, the ma tter of calculating statutory damages on a
per title or per copy or hybrid basis is not yet firmly settled in Israeli case law.
6. Do damages and penalties for copyright infringement amount to adequate compensation and
deterrent for further infringements?  Please provide recent examples of damages or penalties applied
by the courts which meet these standards.
Israeli copyright law provides for compensatory damages within the framework of civil
actions and as such the amount of the damage remedy will be commensurate with the level of actual
damages.  Similarly, where a plaintiff can not, or does not want to, prove the level of actual damages
incurred he can opt for statutory damages.  In addition, in civil action the losing side is generallyrequired to pay some or all of the winning sides court costs and attorneys fees thus forming a remedy
which has both compensatory and deterrent effect.  Indeed damage awards can be quite high, as was
the case in Hershko v. Orbach, C.A. 4500/90, 49 (1) Sup.Ct.Rep. 419, involving infringement of
school books wherein the Supreme Court ordered the infringer to pay compensatory damages in the
amount of close to $700,000 (which sum was composed of actual damages in the amount of
approximately $350,000 and another $350,000 in interest which was measured from the date of the
infringement until the date of the Supreme Court's final decision).
Punitive or deterrent penalties are available within the framework of criminal actions. The
maximum sanctions for criminal infringement of copyright are imprisonment of up to three years and
fines of up to approximately $250,000 U.S. See also the response to question 3 from the EU above.
7. Does the Copyright (TRIPS Agreement) Order 5760-1999 apply to sound recordings and
other works created before 1 January 2000?
Yes.  Indeed in a recent Supreme Court case, Mifal Hapais v. The Roy Export Company, C.A.
8393/96 (not yet reported), the court stated that Copyright Orders in Israel legislation have effect withregard to works which pre date the Order.
8. Can section 5 of the Copyright (TRIPS Agr eement) Order be used to reduce the term of
protection below the levels mandated in Article 2 of the TRIPS Agreement?  What is the purpose and
legal basis of section 5?
Section 5 is intended to incorporate the rule of the shorter term as such is permitted by
Article 7(8) of the Berne Convention with regard to protection of works entitled to protection in Israel
through a reciprocal arrangement.  This article of the Berne Convention, like the Convention's otherIP/C/W/192
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substantive provisions, has been incorporated by reference into the TRIPS Agreement pursuant to
Article 9.1 thereof.
Moreover, Article 3.1 of the TRIPS Agreement pe rmits exceptions to national treatment to the
extent that such exception is provided for in, inter alia , the Berne Convention.
B. T RADEMARKS
9. Is prevention of unauthorized use of identical or similar signs for goods or services, which
are similar to those in respect of which a tradema rk is registered, available to trademark holders
under Israeli Law?  If so, under which provisions?
Yes.  Registered trademark rights will be infringed when a person not entitled thereto makes
use of the registered mark, or a mark confusingly similar thereto, in relation to goods or services in
respect of which the trademark is registered, or to goods or services of the same description.
Infringement of a registered trademark may be remedied by interlocutory relief, such as search and
seizure orders and injunctions enjoining use of the mark, and permanent relief, such as monetary
damages and permanent injunctions. In addition, in cases of counterfeiting criminal sanctions areavailable. See sections 1, 57, 59, 59A and 60 of the Trademarks Ordinance.
10. Please explain what "new or original" means in Article 30(1) and 31(a) of the Ordinance.
Section 30(1) of the Designs Ordinance sets forth the criteria for design right eligibility and
states:  "The Registrar may, on the application made in the prescribed form and manner by any person
claiming to be the proprietor of any new or original design not previously published in Israel, register
the design under this part.  "The requirement of "new or original" is disjunctive in so far as an
applicant need only achieve one of these element, though in some instance both might exist. While the
terms themselves have been subject of varying inte rpretation, as a general rule the concept of "new"
refers to a situation wherein the form or the design are entirely new, whereas the concept of
"originality" refers to cases where notwithstanding the fact that the form is old and known, the design
bestows a novel aspect on the article.
Section 31(a) of the Designs Ordinance provid es that where a particular design has been
registered in respect of an article in a particular class, extension of that design by its proprietor to
other classes will not be refused or invalidated on the ground that the design contained in thesubsequent application is not new or original in lig ht of the proprietor's previous registration, provided
that such subsequent registration shall not extend the period of the subsequent design beyond that
arising from the first registered embodiment of the design.
C. I
NDUSTRIAL DESIGNS
11. How is the right to prevent unauthorized making, selling or importing articles, bearing the
protected design, provided in the Israeli legislation?
Section 37 of the Designs Ordinance provides the design holder with the exclusive right
prevent others from applying the design, or a design similar thereto, to any article in any class ofgoods in which the design is registered if such is done for the purpose of sale or offering for sale
articles bearing the protected design.  Similarly, any person knowingly in possession of an article
containing an unauthorized design may not publish that design or offer it for sale.  Accordingly, the
design holder has the exclusive right to authorize the making, selling or importing of articles bearing
the protected design where such is done for the purpose of selling, offering for sale or publication.Notably, Article 26.1 of the TRIPS Agreement limits the scope of the design holders exclusive rights
to preventing acts of "making, selling or importing" when such acts are undertaken on a commercialIP/C/W/192
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scale.  Moreover, Article 26.2 of the TRIPS Agreement reinforces this limitation by providing that
member states may permit limited exceptions to the protection of industrial designs provided that such
exceptions do not unreasonably conflict with the norm al exploitation of protected industrial designs
and do not unreasonably prejudice the legitimate interest of the owner of the protected design, taking
account of the legitimate interests of third parties.  Accordingly, pursuant to section 37 of the IsraelDesigns Ordinance the design holder effectively has the exclusive right to authorize any activity
which would conflict with a normal exploitation of the protected design.
D. P
ATENTS
12. Please explain whether or not in your legisl ation, patent or otherwise, patent rights are
enjoyed without any exclusions.  If exclusions are provided for, please describe in detail how these
exclusions are applied in legal as well as practical terms.
Patents are available for inventions, whether products or processes, in all fields of technology
provided that the claimed invention is new, useful, capable of industrial application and involves an
inventive step (see section 3 of the Patents Law). Exceptions to patentability are set forth at section 7
of the Patents Law and include:  (i) methods of therapeutic treatment of the human body; and, (ii) newvarieties of plants or animals, except micro-biolog ical organisms not derived from nature.  Notably,
plant patents are available and where a transgenic plant, for example, is also a new plant variety there
exists the possibility for overlapping patent and plant breeders' rights protection.  Additionally, while
a naturally occurring micro-organism per se  would not likely be novel or contain inventive step,
patent protection may be obtained with regard to a function performed by the micro organism, amethod for isolating the micro organism and on methods for changing a micro organism including the
resulting micro organism itself.
13. Please explain whether or not plants, animals and essentially biological processes are
excluded from patentability in your legislation.  If so, please explain the relevant section of yourlegislation and explain its formulation.
See answer to question 12 above.
14. Please explain how your legislation protects patent right holders against importing and
against offering for sale of a patented invention.
A patentee's exclusive rights include the exclusive right to authorize the offering for sale and
importation of inventions covered by the patent.  A patentee's exclusive rights are set forth at
section 49 of the Patents Law, which states (in pertinent part):  "(a) A patent holder is entitled to
prevent any other person from "exploiting" [this is a defined term modelled after Article 28.1 of the
TRIPS Agreement, discussed further infra ] the invention for which the patent has been granted
without his permission or unlawfully, either in the manner defined in the claims or in a similar manner
which, in light of what is defined by those claims, involves the essence of the invention which is the
subject matter of the patent (hereinafter - "infringement").
The term "exploitation", which essentially sets the operative scope of the patentee's exclusive
rights, is defined at section 1 of the Patents Law, which states (in pertinent part):  "'exploitation of an
invention' - (1) in respect of an invention that is a product - any act that is one of the following:
making, use, offer for sale, sale or importation for purposes of one of the said acts;  (2) in respect of
an invention that is a process - use of the process, and in respect of a product directly derived from the
process - any act that is one of the following: making, use, offer for sale, sale or importation forpurposes of one of the said acts; ...".IP/C/W/192
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Accordingly, the patentee has the exclusive right to prevent any other person from, inter alia ,
importing and or offering for sale, without patentee's consent, items which are covered by the patent
or in which the essence of the patented invention is contained.
15. Please describe if your legislation provides for limited exceptions to the exclusive rights
conferred by a patent.  If affirmative, please make a reference to relevant legislation.
In conformance with the limited exceptions to exclusive rights as permitted under Articles 30
and 31 of the TRIPS Agreement, the Israel Patents Law provides for limited exceptions to the
exclusive rights conferred by a patent.  The limited exceptions are set forth in the section 1 definition
of "exploitation of an invention" and include:  "(1) an act that is not on a commercial scale and is not
commercial in character;  (2) an experimental ac t in connection with the invention, the objective of
which is to improve the invention or to develop another invention;  or, (3) an act performed under the
provisions of section 54A.  "(Section 54A et seq sets forth mechanisms for granting patent term
extension of up to five years beyond the normal 20 year term and permitting experimental uses during
the patent term if such use is related to obtaining post patent regulatory marketing approvals.  In
addition, in very limited circumstances and subject to certain restrictions, compulsory licences may beavailable pursuant to the provisions set forth in Chapter 7 (sections 116 - 130) of the Patents Law.
16. Please explain how your legislation explicitly ensures that a proposed user has made efforts
to obtain authorization from the right holder on reasonable commercial terms and conditions and that
such efforts have not been successful within a reasonable period of time. In this context, how do youdefine "reasonable period of time".  Please also explain how your legislation ensures that the use of a
compulsory licence shall be authorized predominantly for the supply of the domestic market of the
Member authorizing such use.
In light of the TRIPS-required changes to the compulsory licensing scheme, it is very unlikely
that there will be future applications for compul sory licences, with the possible exception of where
exploitation of a later patent is dependent upon the consent of the owner of an earlier patent.  Even
where individual circumstances would permit the granting of a compulsory licence, the process for
obtaining such is lengthy and contains numerous means to safeguard legitimate patent rights which
include requiring the compulsory licence applicant to make reasonable efforts to first obtain a
voluntary licence.  Firstly, no compulsory licence application can be made prior to later of the
expiration of three years from the date on which the patent was granted or four years from the date ofthe filing of the patent application (section 117.b).  Second, as a general rule prior to the
commencement of an action, the Commissioner will request the patentee to state, within 60 -120 days,
whether and to what extent the patent is being exploi ted in Israel.  Finally, the existence of a voluntary
licence, or reasonable offer thereof, would form the basis for the Commissioner to refuse the grant of
a compulsory licence (see sections 119(2), 122(3) & (5); and, In re compulsory licence application24187, Teva v. Ciba-Geigy , Decisions of the Commissioner (1978-1984), Vol. I, page 5, 6, 24).
17. Please explain how your legislation provides for the enhanced patent protection of patents or
patent applications pending on 1st January 1995.
The TRIPS implementation amendments became effective as of 1 January, 2000, the date on
which Israel, pursuant to "developing country status" became obligated to implement the TRIPS
Agreement other than Articles 3, 4 and 5 thereof.  Patent applications pending as of the date of
1 January, 2000 may be amended to comport with any changes to the Patents Law resulting from the
Law to Amend Intellectual Property Laws (Modification to Suit the Provisions of the TRIPSAgreement, 5760-1999 (see section 12(c) thereof).
18. Please explain how your legislation provides for the reversal of the burden of proof in
relation to process patents.IP/C/W/192
Page 12
The reversal of the burden of proof in relation to process patents is set forth in section 50 (as
amended by the 1 January, 2000 TRIPS implementation law) of the Patents Law. Section 50 is
modelled on Article 34.1 of the TRIPS Agreement and in accordance with Article 34.2, section 50
incorporates the alternative set forth at subparagraph (b) of Article 34.1.
19. With regard to the definition of "exploitation" of an invention in section 1 of the Patent Law,
is the act of "making" not included as is required by Article 28.1(a) of the TRIPS Agreement?
The act of "making" is covered by the definition of "exploitation of an invention.  "Indeed the
definition of "exploitation of an invention" was modelled on Article 28.1 of the TRIPS Agreement.  Inthe Hebrew language version of "exploitation of an invention" the word "making" has been translated
to the Hebrew word "yi'tzoor".  That Hebrew word can be translated into English as either
"production" or "making".  To the extent that production implies multiple quantities, whereas
"making" implies even a single reproduction, th e Hebrew word "yi'tzoor" would cover either
circumstance.  It is for that reason that the word "production" and not the word "making" appear insome of the English language translations of the Patent Laws, but the translation could just as easily
be "making" instead of "production".
E.
PROTECTION OF UNDISCLOSED INFORMATION
20. How is protection of undisclosed information effected in Israel?
Confidential information is protected in pursuant to many years of case law as well as
pursuant to Chapter 2 of the recently enacted Commercial Torts Law, 5759-1999.  That law defines
trade secrets very broadly in and includes commercial information of every kind, which is not public
knowledge or which cannot readily and legally be discovered by the public, the secrecy of whichgrants its owner an advantage over his competitors , provided that its owner takes reasonable steps to
protect its secrecy.  Liability will be imposed upon the wrongful taking, receiving or use of another's
trade secret. In addition a public authority or employee thereof must not disclose confidential
information (see section 23B of the Law for the Protection of Privacy, 5741-1981 and Rule 42.5 et
seq. of the Civil Service Bylaws.  Additionally, disclosure of a trade secret may constitutes a criminal
offence such as, inter alia , disclosures in violation of the Civil Service Bylaws or where a trade secret
is wrongfully disclosed by an employee who learned of the trade secret as a consequence of hisemployment (see sections 117-120, and 496 of the Penal Law).
F. E
NFORCEMENT
21. What are the requirements for surety or bonds placed on a plaintiff in patent cases?
The Patents Law makes no provisions regarding sureties or bonds in patent litigation.
Requirements for sureties or bonds would arise, if at all, pursuant to rules of civil procedure with
respect to pre judgment remedies such as the "Anton Pillar" search and seizure order (discussed
further in question 22 below).  In addition, in any civil matter (patent or otherwise), a plaintiff may be
required to post a bond to cover the costs of the defendant should the claim not be successful(section 519 of the Rules of Civil Procedure) where it appears justified to do so in light of the specific
circumstance of the matter.  However, as Israel is a member the Hague Convention On Civil
Procedure, such bond requirements will not be imposed on plaintiffs who are citizens of member
states solely due to the fact that they are foreign (see section 28 of the Rules for Compliance with the
Hague Convention on Civil Procedure).IP/C/W/192
Page 13
22. What are the requirements imposed by Israeli courts for evidence necessary to the granting of
orders to preserve relevant evidence?
Israeli courts are empowered to grant pre judgment "Anton Pillar" type orders, on an ex parte
basis, for the purpose of obtaining and preserving evidence (and preventing the free circulation ofgoods which might ultimately be deemed infringing), which are in the custody of parties or third
parties, provided that plaintiff can show by affi davit or other evidence that there is a reasonable
suspicion that without the Order plaintiff will suffer serious harm and that evidence is likely to
disappear. 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. In addition, the courtmay require the moving party to post adequate security in favor of the party against whom the Order
has been granted in order to cover possible compensation for damage caused by such Order (see
section 244 of the Rules of Civil Procedure).  With respect to Anton Pillar Orders arising under the
Commercial Torts Law posting of se curity is obligatory (section 18).
JAPAN
A. C
OPYRIGHT
1. Please explain how the protection is provided for works, phonograms, performances and
broadcasts from other WTO Members under the Law on Copyright and Neighbouring Rights of Israel
(hereinafter referred to as "Copyright and Neighbouring Rights Law").  Please describe the
provisions of the Copyright and Neighbouring Rights Law which provide for the National Treatment
and Most-Favoured-Nation Treatment as required by Articles 3 and 4 of the TRIPS Agreement as well
as Article 9.1 of the Agreement which incorporates Article 5(1) of the Berne Convention.
Works, phonograms, performances and broadcasts from other WTO Members are protected in
Israel at least to the extent as required under th e TRIPS Agreement.  Pursuant to section 6 of the
Copyright Ordinance, where a bilateral or multilate ral copyright instrument has been signed between
Israel and another state, the Minister of Justice is empowered to enact Orders so that the works for
which the instrument requires protection in Israel shall be protected in accordance with the provision
of such Order.  To that end, and to the extent that the TRIPS requirements were not met by existinglaw, the following Orders were enacted: C opyright (TRIPS Agreement) Order, 5760-1999;  and,
Performers and Broadcasters Rights (TRIPS Agreement) Order, 5760-1999.
With regard to "works", including works contained in broadcasts, Israeli copyright law will
accord protection to foreign works provided that the work was:  (i) first published in a WTO Memberstate; or, (ii) the author of the work was a citizen of a member state, or maintained his ordinary place
of residence therein, at the time of authoring the work, regardless of whether the work was published
or not; or, (iii) even where the conditions set forth in (i) or (ii) do not apply, then protection will also
be accorded- (a) where the work is a cinematographic the work will be protected provided its
producer's business center or ordinary place of reside nce is in a member state, or, (b) where the work
is a work of architecture standing in a member state, and any other artistic work contained in such
building or in a structure situated in a member state.
With regard to "phonograms", foreign phonograms will be protected in Israel, for a period of
50 years, provided that its producer was a citizen of a WTO member state or the work was firstpublished in a member state.IP/C/W/192
Page 14
With regard to "performances", the criteria for protection of foreign performances, in
accordance with the Performers and Broadcasters Rights (TRIPS) Order, 1999, is the place of the
performance. That is, any performance which takes place in a member state will be protected in Israel
in accordance with the provisions of Article 14 of the TRIPS Agreement regardless of the nationality
of the performer.
2. Please explain exceptions or exemptions of the National Treatment and Most-Favoured-
Nation Treatment under the Copyright and Neighbou ring Rights Law, if any, as permitted in
Articles 3 and 4 of the TRIPS Agreement.
There are two such exceptions, the first deals with the rule of the shorter term as permitted
pursuant to Article 7(8) of the Berne Convention, and the second relates to points of attachment forproducers of phonograms pursuant to Article 1.3 of the TRIPS Agreement.  With regard to the rule of
the shorter term, the duration of protection in Israel  for foreign works shall not exceed the term which
is provided for such works in their country of origin.  See paragraph 5 of the Copyright (TRIPS
Agreement) Order, 5760-1999;  and, paragraph 4(1)  of Copyright (Berne Convention) Order, 5713-
1953.  With regard to the points of attachment, Israel has availed itself, pursuant to Article 1(3) of the
TRIPS Agreement, in so far as Israel will not apply the criterion of fixation referred to in
Article 5(1)(b) of the Rome Convention as regards the protection of producers of phonograms.  The
notification was published by the WTO on 22 March 2000 in document IP/N/2/ISR/1.
3. Please explain whether and how Israel provides retroactive protection to works, phonograms,
performances from other WTO Members, as required by Articles 9.1, 14.6, and 70.2 of the TRIPS
Agreement which apply, mutatis mutandis, Article 18 of the Berne Convention.  Please indicate the
date to which such protection extends back with respect to each category of subject matter.
In Mifal Hapayis v. The Roy Export Company , C.A. 8393/96, (not yet reported), the Supreme
Court confirmed that copyright law will apply to foreign works which were in existence prior to the
enactment of Orders regarding foreign works.  With regard to the date on which such protection
extends back, as a general rule foreign works and phonograms will be protected retroactively to their
date of creation and performances to the date on which the performance occurred.
4. Please explain whether protection of "computer programs" under the Copyright and
Neighbouring Rights Law covers computer programs in both source and object code, as required byArticle 10.1 of the TRIPS Agreement.  Are those computer programs protected as literary works in
accordance with Article 2(1) of the Berne Convention?
Computer programs, whether in source or object code, are protected as literary works in
accordance with Article 10.1 of the TRIPS Agreement and in accordance with Article 2(1) of theBerne Convention.  Section 2A of the Copyright Ordinance, as amended by the TRIPS
implementation act, states:  "For purposes of copyright, computer programs, whether in source or
object code, shall be treated like a literary work, within the meaning of that term in the Copyright
Law."
5. Please clarify whether "database" under the Copyright and Neighbouring Rights Law
includes compilation of data in machine-readable form.  Please explain how the Law complies with
Article 10.2 of the TRIPS Agreement in this respect.
The Copyright Act, in section 35(1) lists compilations as a type of "literary work" which
includes compilations of data or other material.  Literary works will be protected regardless of their
medium of fixation.IP/C/W/192
Page 15
B. T RADEMARKS
6. Please explain how legislation of Israel complies with Articles 2.1, 16.2 and 16.3 of the
TRIPS Agreement which apply, mutatis mutandis, Article 6bis of the Paris Convention.
Israel law gives full protection to well known marks in compliance with the TRIPS
Agreement and Article 6 bis of the Paris Convention.
In particular, Article 2.1 of the TRIPS Agreement, which incorporates by reference
Article 6 bis of the Paris Convention, and Article 16.3 of the TRIPS Agreement have been
implemented into Israeli law pursuant to sections 11(13) & (14) [refusal to register], 24 [opposition to
registration], 39 [cancellation of a registration] and 57, 59, 59A & 60 [prohibition of use, and
remedies for infringement] of the Trademarks Ordinance which provide:  (a) that marks may be
refused, cancelled or have their use prohibited when such marks are identical to, or misleadinglysimilar with, an unregistered well known mark, in respect of goods or services for which the well
known mark is well known or in respect of goods of the same description;  or, (b) that marks may be
refused, cancelled or have their use prohibited, when such marks are identical to, or misleadingly
similar with, a well known mark which is registered in Israel in respect of goods or services dissimilar
from those in respect of which the well known mark is registered, provided that use or registration ofsuch mark in relation to such dissimilar goods or services would indicate a connection between those
goods or services and the owner of the registered trademark, and the owner of the registered
trademark might be harmed as a result of such use.
Israeli trademark law has for many years applied, mutatis mutandis, to services (section 2 of
the Trademarks Ordinance).  The definition of a well known mark (section 1 of the Trademarks
Ordinance) requires that for purposes of determining whether a trademark is a well known trademark
in Israel, the extent to which the mark is known in public circles relating to it and the extent to which
it is known as a result of marketing, shall inter al ia, be taken into account.  Hence, the Trademarks
Ordinance implements the provisions of Article 16.2 of the TRIPS Agreement.
C. G
EOGRAPHICAL INDICATIONS
7. Please explain how legislation of Israel comp lies with Article 23.2 of the TRIPS Agreement
which provides additional protection for geographical indications for wines and spirits.
Article 23.2 of the TRIPS Agreement requires members to provide for the refusal or
invalidation of trademarks which contain or consist of a geographical indication identifying wines orspirits not having such origin. Pursuant to sections 11(12), 24, and 39 of the Trademarks Ordinance,
trademarks in respect of wines or spirits that contain a geographical indication not having this origin
will be refused registration and can be cancelled. In addition, section 21B of the Appellations of
Origin and Geographical Indications Protection Law forbids the use of geographical indications
identifying wines or spirits for wines or spirits not originating in the place indicated by thegeographical indication, even where the true origin of the goods is indicated or the geographical
indication is used in translation or accompanied by expressions such as 'kind', type', 'style', 'imitation'
and the like.
D. P
ATENTS
8. Please explain how legislation of Israel comp lies with Article 28 of the TRIPS Agreement,
clarifying definition of "exploitation"  in Section 49 of the Patent Law.
Article 28.1 of the TRIPS Agreement has been incorporated into the Patents Law through
sections 49 "rights of patentee" and 1 "exploitation of an invention" thereof.  The provisions ofArticle 28.2 have been extant in Chapter 5 of the Patents Law since 1967.  A patentee's exclusiveIP/C/W/192
Page 16
rights are set forth at section 49 of the Patents Law, which states (in pertinent part):  "(a) A patent
holder is entitled to prevent any other person from "exploiting" [this is a defined term modelled after
Article 28.1 of the TRIPS Agreement, discussed further infra ] the invention for which the patent has
been granted without his permission or unlawfully, either in the manner defined in the claims or in a
similar manner which, in light of what is defined by those claims, involves the essence of theinvention which is the subject matter of the patent (hereinafter - "infringement").
The term "exploitation", which essentially sets the operative scope of the patentee's exclusive
rights, is defined at section 1 of the Patents Law, which states (in pertinent part):  "'exploitation of an
invention' - (1) in respect of an invention that is a product - any act that is one of the following:
making [sometimes translated as "production", as the Hebrew word for making is the same as for
production], use, offer for sale, sale or importation for purposes of one of the said acts; (2) in respectof an invention that is a process - use of the process, and in respect of a product directly derived from
the process - any act that is one of the following: making, use, offer for sale, sale or importation for
purposes of one of the said acts; ... ".
9. Please explain how legislation of Israel complies with Articles 34.1, 34.2, and 34.3 of the
TRIPS Agreement.
The reversal of the burden of proof in relation to process patents, as required by Article 34.1
and 34.2 of the TRIPS Agreement, are provided for by section 50 (as amended by the 1 January 2000
TRIPS implementation law) of the Patents Law. Section 50 is modelled on Article 34.1 of the TRIPSAgreement and in accordance with Article 34.2, section 50 incorporates the alternative set forth at
subparagraph (b) of Article 34.1.
The provisions of Article 34.3 of the TRIPS Agreement have been incorporated into Israel
legislation at section 23 "non-disclosure of commer cial secret" of the Commercial Torts Law, 5759 -
1999 which is applicable in all proceedings. Section 23 states:
"(a) The court may, on its own initiative or upon application, issue an order to ensure that
a trade secret revealed during the course of legal proceedings and belonging to a litigant or to
any other person not be made public.
(b) The court may, at the application of any person, issue an order during the course of
legal proceedings, in respect of the manner of adducing evidence constituting a trade secret.
(c) In legal proceedings in a civil matter, the court may, at the application of any person,
issue an order relating to the non-disclosure of evidence constituting a trade secret, provided
that it is of the opinion that the interest in n on-disclosure of the evidence is greater than the
need to disclose it for the purposes of doing of justice, and that the issuing of an order under
sub-sections (a) and (b) would not protect the trade secret.
(d) In this section, the term "court" shall include a court, tribunal, body or person with
judicial or para-judicial authority under any law."
Accordingly, all of the provisions of Article 34 of the TRIPS Agreement have been
incorporated into Israeli law.
E. E
NFORCEMENT
10. Please indicate the remedies which the judicial authorities order regarding intellectual
property rights, including injunctions, damages, expen ses, destruction or disposal of infringing goods,
materials or implements for their production. Pl ease explain the criteria for and the way ofIP/C/W/192
Page 17
calculation to decide the amount of the damages which judicial authorities order to the person who
infringes intellectual property rights to pay to the right holder.
Injunctions:
The Israel Courts are empowered to grant interim and permanent injunctions in all
proceedings, including matters involving IPRs, on either an ex parte or inter partes  and have very
wide latitude to craft the scope of the injunctive re lief to fit the needs of an individual matter.  Such
power flows primarily from the court's inherent ju risdiction (see, section 75 of the Courts Law) as
well as from case law and 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 Trad emarks 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.Ex parte orders will be subject to inters partes  review shortly after they have come into effect.  Some
examples of interim injunctive relief, which may be granted with respect to IPRs, include:
(1) " The Anton Pillar Order " - Israeli courts may order, upon application of the plaintiff,
the appointment of a temporary receiver (usu ally the plaintiff's attorney) who will be
empowered to enter the premises of  defendant s and non-parties in order to search for and
seize documents, evidence and prima facie infringing matter for the purposes of preserving
evidence and preventing the free circulation of goods which court may ultimately be deem
infringing. Authority for the Anton Pillar Order is generally 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 domestic and foreign assets until the conclusion of the hearing or
alternatively to require him to post a security bond.  The purpose of such injunction is toensure 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. 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 solelyon 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 executionIP/C/W/192
Page 18
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 Israel.  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 goodspursuant to section 200A of the Customs Ordinance.
Final remedies:
(1) 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 and violation of an injunction constitutes contempt of court which is often a criminal
offence;
(2) 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 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, theremedy of delivery up exists also with respect to infringement of performer's rights;
(3) 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, newsection 59A of the Trademarks Ordinance pr ovides 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.
(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;IP/C/W/192
Page 19
(5) 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 atputting 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 herein);  seealso Hershko v. Orbach, C.A. 4500/90, 95 (1) Supreme Court Rep. 645 (27.3.95) (setting
forth factors which should be considered when determining damages for copyright
infringement);
(6) 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 e ach 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.  Seealso response to question 5 from the EC above.
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 infringeme nt, the Court may order the infringer to pay
punitive damages (see, Patents Law, section 183.c).
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 unn ecessarily 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.
11. Please indicate titles of laws and regulations and their provisions in which the suspension of
the release of counterfeit trademark of pirated copyright goods is prescribed, as stipulated in
Article 51 of the TRIPS Agreement. Please explain ty pes of intellectual property rights about which
the suspension can be made upon an application by a right holder.
 
 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 Directorof Customs has statutory authority to delay the release of goods which are prima facie infringing
either of 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, the customs official have broad authority to seize any good which, inter alia ,IP/C/W/192
Page 20
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 arein 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 country by or with the consent of the right holder, or to goods in transit.
12. Please explain the kind and amounts of crimi nal penalties including imprisonment and fines
regarding intellectual property rights. In particular, are the crimes prosecuted only when the injuredparty has made a formal accusation? Please also explain whether penalties are consistent with
Article 61 of the TRIPS Agreement which requires the penalties to be sufficient to provide a deterrent,
consistently with the level of penalties applied for crimes of a corresponding gravity.
(1) Copyright - Pursuant to section 3 of the C opyright Ordinance it is a criminal offence for a
person or entity to knowingly:  (a) Make an infringing copy for purposes of sale or rental;  (b) Sell,
rent or display for sale or rental, for commercial purposes, an infringing copy;  (c) Distribute
infringing copies for commercial purposes or in quantities that may harm the rights holder;  (d)
Display in public, for commercial purposes, an infr inging copy;  (e) Import an infringing copy into
Israel for sale or rental;  (f) Make or possess a device for making infringing copies, or display a workfor his own benefit without the rights holder's consent.  The penalty for such criminal violations is up
to three years imprisonment and fines of up to one million new shekels (approximately
US $250,000.00)
(2) Related Rights - Pursuant to chapter three of the Performers' and Broadcasters' Rights Law
it is a criminal offence to knowingly violate a performers or broadcasters rights which offence is
punishable by up to six months imprisonment and fines of up to 150,000 New Shekels (approximately
US $38,000.00).
(3) Trademarks - Pursuant to section 60 of th e Trademarks Ordinance and section 3 of the
Merchandise Marks Ordinance it is a criminal offence, punishable by up to one years imprisonment
and fines of up to 19,300 New Shekels (approximately US $4,800.00, see section 61 of the PenalLaw) where a person or entity, with intent to deceive, commits or attempts to commit or aids or abets
any other person in committing any of the following act s:  (a) not being the proprietor thereof makes
use of a registered trademark or an imitation of such a mark upon the same class of goods as that in
respect of which the mark is registered;  (b) sells, stores for the purposes of sale, or exposes for sale,
goods bearing a mark the use of which is an offence under section (a) above;  (c) uses for the purposeof advertising goods, in the press or in some other manner, a mark duly registered by another person
in respect of goods of the same class;  (d) makes, engraves, prints or sells any plate, die, block or
other representation of a duly registered mark or any other imitation thereof for the purpose of
enabling any person other than the registered proprietor of such mark to make use of such mark or an
imitation thereof in connection with goods of the same class as those for which it is registered;  (e)makes or cause to be made a false entry in the Register, or a writing falsely purporting to be a copy of
an entry in the Register, or produces or tenders or causes to be produced or tendered in evidence any
such writing, knowing the entry or writing to be fals e.  Similarly, the wilful infringement with intent
to deceive of an appellation of origin or an unregistered trademark are punishable by up to one year
imprisonment and fines of up to New Shekel 19,300.00 (see section 24 of the Appellations of Origin
Law and section 3 of the Merchandise Marks Ordinance).
(4) The public authority responsible for the initiation of criminal proceedings in the
intellectual property field, like in other areas of criminal activity, is that of the police.  Cases that raiseIP/C/W/192
Page 21
suspicion of criminal activity, either on the basis of a complaint or information supplied by private
sources, or on the basis of the police's own initiative, are investigated by police personnel.  In
addition, in cases of consumer deception the Commissioner of Consumer Protection has authority to
commence a criminal investigation (Consumer Protection Law, section 19 et seq .).
In addition, pursuant to the Criminal Procedure Law, section 68 and Schedule 2 thereto, any
affected party may file a private criminal complaint with respect to infringement of a copyright or
trademark, as well as infringement of certain provisions of the Merchandise Marks Ordinance and the
Consumer Protection Law.  Such complaints are heard by the Magistrates Court and may be
accompanied by an application for an ex parte search and seizure order.  The Public Prosecutor, who
is provided with a copy of every private criminal complaint, may decide to take over the prosecution
of the case.
UNITED STATES
A. G ENERAL
1. Please describe, in relation to each form of intellectual property covered by the TRIPS
Agreement, including plant variety protection, the manner in which national treatment and most
favoured nation treatment are provided to nationals of other WTO Members.
Israel intellectual property law provides for national treatment and most favoured nation
treatment (hereinafter - "MFN") at least to the extent required under the TRIPS Agreement and other
intellectual property conventions to which Israel is a party. In particular:
Copyright and Related Rights - see responses to questions 2 and 3 from Japan, above.
Trademarks - Israel trademark law treats nationals of other WTO Members as least as well as
it treats Israeli nationals in respect of the acquisition, scope, maintenance and enforcement of
trademark rights and will recognize priority rights based on prior trademark applications duly filed in
a WTO member state.  Indeed, nationals of other WTO Members effectively receive better than
national treatment with regard to rights accruing pursuant to Article 6 bis "Well Known Marks" and
Article 6 quinquies  "tels quels rights" of the Paris Convention, which articles have been incorporated
by reference into the TRIPS Agreement pursuant to Article 2.1 thereof.  Additionally such favorabletreatment is extended to nationals of all WTO Members.
Geographical Indications - Israel law in respect of geographical indications does not
differentiate in its treatment of Israeli nationals as opposed to nationals of other WTO Members in
respect of the acquisition, scope, maintenance and enforcement of geographical indication rights andany such rights are extended to nationals of all WTO Members.  Nevertheless, it should be noted that
Israel is a member of the Lisbon Agreement for the Protection of Appellations of Origin and their
International Registration (hereinafter- "Lisbon").  To the extent that "geographical indications", as
that term in understood by the TRIPS Agreement, includes "appellations of origin", as that term is
known and given juridical standing pursuant to th e Lisbon Agreement and concomitant Israeli law, it
should be noted that privileges inuring under the Lisbon Agreement are extended only to appellations
originating in other members of the Lisbon Agreement.  This preferential treatment is permitted
pursuant to Articles 4 and 5 of the TRIPS Agreement.
Industrial Designs - Israel design law does not distinguish between its treatment of Israeli
national and nationals of other WTO Members in respect of the acquisition, scope, maintenance and
enforcement of design rights and will recognize priority rights based on prior design applications dulyIP/C/W/192
Page 22
filed in a WTO member state.  Additionally MFN is maintained in so far as any favorable treatment is
extended to nationals of all WTO Members.
Patents - Israel patent law does not distinguish between its treatment of Israeli national and
nationals of other WTO Members in respect of the acquisition, scope, maintenance and enforcementof patent rights and will recognize priority rights based on prior patent applications duly filed in a
WTO member state.  Additionally MFN is maintained in so far as any favorable treatment is extended
to nationals of all WTO Members.
Layout-Designs (Topographies) of Integrated Circuits - in respect of the acquisition, scope,
maintenance and enforcement of Topography rights no distinction is made between the rights of
Israeli nationals and nationals of other WTO member states.
Undisclosed information - in respect of the acquisition, scope, maintenance and enforcement
of rights in undisclosed information no distinction is made between the rights of Israeli nationals and
nationals of other WTO member states.
Plant Varieties - Plant variety protection is not part of the TRIPS Agreement and therefore
there is no extension of the Plant Breeders Rights law to nationals of TRIPS Member states as such.
The Israel Plant Breeders Rights Law is based upon, and consistent with national treatment and MFN
requirements deriving from the 1991 revision of the International Convention for the Protection of
New Varieties of Plants (UPOV).
B. C
OPYRIGHT AND RELATED RIGHTS
2. Section 1(2) of the Copyright Act of 1911 states that "'copyright' means the right to produce
or reproduce the work or an substantial part thereof in any material form whatsoever, …"
Article 19(1) provides that copyright subsists in "records, perforated rolls, and other contrivances bymeans of which sound may be mechanically reproduced, in like manner as if such contrivances were
musical works, ..."  Please confirm that these provisions ensure that producers of phonograms enjoy
the right to authorize or prohibit the direct or indirect reproduction of their phonograms and describe
the manner in which that is accomplished.
We confirm that Israel copyright law ensures that producers of phonograms enjoy the right to
authorize or prohibit the direct or indirect reproduction of their phonograms.  Section 1(2) of theCopyright Law defines copyright as the sole right to produce or reproduce their works or any
substantial part thereof in any material form whatsoever.
3. In section 3B of the Copyright Ordinance (I P/N/1/ISR/C/2) and subsequent sections, the word
"cassette" is crossed out and "recordable media" is inserted.  Does this indicate that an amendmenthas been made to the Ordinance and, if so, please provide a citation to the legislation that made the
amendment.  If the handwritten insertion does not indicate an amendment, please explain its source
and meaning.
The term "recordable media" is the correct translation of the wording in section 3B of the
Copyright Ordinance.  This term has not been the subject of an amendment and use of the word
"cassette" was an inaccurate translation.  As the translation mistake was caught at the last minute the
correction was made in handwriting.
4. Section 6(2) of the Copyright (TRIPs Agreem ent) Order, 5760-1999, provides a rental right
under section 3F of the Copyright Ordinance for sound recordings "other than the rental of sound
recordings that form part of another object that is the principal object for hire."  The quoted language
is nearly identical with that in Article 11 of th e TRIPS Agreement which is intended to except from theIP/C/W/192
Page 23
rental right for computer software the rental of operating system software installed in a rented
computer.  Please explain what "objects" would be covered by the exception provided in section 6(2)
regarding sound recordings.
Section 6(2) of the Copyright (TRIPS Agreem ent) Order, 5760-1999 and section 3F of the
Copyright Ordinance are modelled on Articles 14.4 and 11 of the TRIPS Agreement.  As such the
exception outlined in Article 11 is applicable to the rights of producers of phonograms.  An example
of this exception in practice might occur where the principal object of the rental is an automobile
which has built in playback of sound recordings for the pleasure of the driver.
5. Section 12(a) of the Law to Amend Intellectu al Property Laws: Modifications to Implement
the Provisions of the TRIPS Agreement, 5760-1999 states that the addition to section 3F1 of the
Copyright Ordinance, which makes rental of computer programs for commercial purposes an
infringement of the copyright, does not apply to "the hiring of computer software acquired prior to the
date of commencement."  Article 70.2 of the TRIPS Agreement requires that TRIPS gives rise to
obligations in respect of all subject matter (computer programs) existing at the date of application of
this Agreement for the Member in question (1 January, 2000), and which is protected (copyright) inthat Member on said date ...  Please explain how  the exception to the application of section 3F1
provided by section 12(a) is consistent with the requirements of Article 70.2.
The above exception is modelled on, and consistent with, Article 70.5 of the TRIPS
Agreement.
C. T
RADEMARKS
6. The amendment to section 59 of the Trade marks Ordinance by the TRIPS implementing
legislation limits the remedies available to owners of well-known trademarks for infringement of their
marks to injunctions only.  Please indicate the section or sections of the TRIPS Agreement thatauthorize such a limitations on remedies.
Israeli law provides owners of well known mark s with the ability to obtain both pecuniary
damages and injunctive relief  within the combined framework of the Trademarks Ordinance and the
passing off provisions of the Commercial Torts Law.  Additional monetary and or injunctive relief
may be available pursuant to the Law Against Unjust Enrichment and the Merchandise Marks
Ordinance.
7. Subsection (3) provides that a well-known trademark is protected against a misleading use
for the purpose of "goods in respect of which the mark is known or for the purpose of goods in the
same class...."  The TRIPS standard, as set out in Article 16.1, is to provide protection against "goods
or services, which are identical or similar to those in respect of which the trademark is registered...".There is no limitation to goods in the same class.  (This same comment applies to subparagraph (12)
added to Article 11).
The term "same class" appears to be a translation mistake. Subsection (3) of paragraph 1
"Definition" of the Trademarks Ordinance states:  " ... of goods for which the mark is well known or in
respect of goods of the same description.  "Hence, the phrase "same class" is incorrect and the correct
phrase is "same description.  "(Note: In accordance with the provisions of section 2 of the Trademarks
Ordinance the term "goods" includes the term "services".)
The reference to subparagraph (12) of Article 11 appears to be mistaken. The question
appears to intend a reference to subparagraph (14) of Article 11 of the Trademarks Ordinance.  If so,
hereto, the English translation is not correct. The phrase "same class" is an incorrect translation.  The
correct translation is "same description."IP/C/W/192
Page 24
8. It appears that the additional subparagraph (12) for Article 11 provides protection for "wine
and alcoholic beverage(s) " rather than wines and spirits as set out in Article 23 of the TRIPS
Agreement.  Is there a definition of "alcoholic beverages" that sets out what is considered an
"alcoholic beverage"?
The term "alcoholic beverage" is defined in section 1 of the Alcoholic Beverages Ordinance
as being a beverage containing more that 25% alcohol.  Notably, the TRIPS Agreement does not itself
provide a definition of the term "spirits."
9. Article 19.2 of the TRIPS Agreement provides that: "[W]hen subject to the control of its
owner, use of a trademark by another person shall be recognized as use of the trademark for thepurpose of maintaining the registration."  It appea rs that Section 41 and its new amendments do not
allow the owner of a trademark to claim use by a licensee or other authorized person unless the
owner has recorded such a licence under section 50 of the law.  If so, these provisions are
inconsistent with Article 19.2.
Article 19.2 of the TRIPS Agreement is "registration neutral" and merely sets forth an open-
ended minimal requirement, (i.e. licensee's use must be subject to control of the mark's owner) for
determining when use by a licensee will inure to the trademark holder for purposes of maintaining a
registration.  Article 19(2) does not set maximal requirements, but rather together with Article 21
leaves open to member states to determine for themselves whether to also add a recordal requirementand indeed.  Trademark licence recordal obligations promotes several important public interests such
as:  (a) transparency, such that the public as well as interested parties can verify prospectively and
with certainty whether licence arrangements are in  place;  and, (b) providing a means of protecting
subsequent assignees who may not be informed of the existence of prior licences.
D. G
EOGRAPHICAL INDICATIONS
10. Section 11 of the Trademark Law specifies ma rks that may not be registered.  Paragraph 6 of
that section prohibits registration of marks that contain a false indication of origin and paragraph 11
prohibits registration of a mark of geographical significance.  The purpose of these prohibitions, and
the basis for refusal of registration in sections 12 and 13 help to ensure honest business practices and
to prevent consumer confusion.  The Appellations of Origin Law does not contain any provisions
aimed at ensuring that a newly applied for geographical indication should be refused if it is identicalor similar to an existing registered or well-known trademark.  Why has the first-in-time, first-in-right
principle not been applied?
A first-in-time, first-in-right type pr inciple has been incorporated in the Appellations of
Origin and Geographical Indications Protection Law , as amended, (hereinafter Appellations Law).
Notably, the Appellations Law does not contain a mechanism for the examination and registration of
"geographical indications" (as that term is understood by the TRIPS Agreement).  Hence, there is no
mechanism to refuse registration of geographical indications, just as there is no mechanism for their
registration.  (In contrast, "appellations of origin" do undergo examination and registration
proceedings.)  Pursuant to new section 52A(2) of the Trademarks Ordinance and new section 33A ofthe Appellations Law, senior good faith trademark rights, whether acquired through use or
registration, will not be impaired by a later arising geographical indication.  Moreover, pursuant to
section 57 of the Trademarks Ordinance, trademark rights will be infringed where there is adverse use
of the trademark, or of a mark resembling such trademark, in relation to goods in respect of which the
trademark is registered (and also in respect of an unregistered well known mark), or to goods of thesame description.  Conversely, a junior trademark would not be entitled to the safe harbour provision
of sections 52A(2) and 33A and existence of a seni or geographical indication may form the basis for
refusal to register a conflicting trademark (see sections 11(6A & 6B of the Trademarks Ordinance).IP/C/W/192
Page 25
Additionally, use of such a conflicting trademark may be prescribed subject to the provisions of
section 21A of the Appellations Law.
11. In addition, because geographical indications and appellations of origin are dealt with under
different chapters of the Israeli law, an ar gument can be made that where the law refers to
geographical indications, such as in subsection 33(a) it excludes appellations of origin, unless they
are expressly mentioned.  If the law were interpre ted in that manner, a trademark owner would not be
able to assert its rights effectively against an appellation of origin.  Does the law permit the owner of
a trademark to assert its rights against an appellation of origin and, if so, how?
While the term "appellation of origin" appears in Article 1(2) of the Paris Convention, which
article is incorporated by reference into the TRIPS Agreement, neither Paris, nor TRIPS makesreference to appellations of origin as such term  is defined and empowered pursuant to the Lisbon
Agreement for the Protection of Appellations of Origin and their International Registration
(hereinafter "Lisbon").  Hence, one could argue that while signs which would be deemed appellations
of origin pursuant to Lisbon, also fit within the definition of a TRIPS "geographical indication", not
all TRIPS "geographical indications" fit within the definition of, nor are entitled to the rights of, an"appellation of origin".  Accordingly, TRIPS appear s to be inconclusive with regard to determining
respective rights as between trademarks and geographical indications on one hand and conflicting
"appellations of origin" on the other.  While section 33A of the Law for the Protection of Appellations
or Origin and Geographical Indications uses only the term "geographical indications "it will be up to
the Courts to determine whether that term also includes "appellations of origin" for purposes ofsection 33A.  Additionally, pursuant to section 57 of the Trademarks Ordinance, trademark rights will
be infringed where there is adverse use of the trad emark, or of a mark resembling such trademark, in
relation to goods in respect of which the trademark is registered (and also in respect of an unregistered
well known mark), or to goods of the same description.
12. Article 16.1 of the TRIPS Agreement provides th at the owner of a registered trademark shall
have the exclusive right to prevent all third parties not having his consent from using in the course of
trade identical or similar signs for goods or services.  If the trademark owner cannot object to the
registration of an appellation of origin, then it has lost its right to exclusive use under Article 16.1.
Article 24.5 provides applicable time periods to protect pre-existing trademark rights.  Does the
Israeli law protect that right to exclusive use?
Opposition to the registration of an appellation of origin can be made in accordance with
section 10 of the Law for the Protection of Appellat ions or Origin and Geographical Indications on
the grounds that:  (1) the designation whose registration is applied for is not an appellation of origin,
but merely an indication of provenance or type;  or, (2) the person who claims to be the person
entitled to the appellation is not entitled to use it.  Hence a relative grounds opposition on the basis ofa senior trademark right might be sustained under option (2), however we are not aware of any case
law on this point.
Notably, the exception found in Article 24.5 applies against "geographical indications" yet is
silent with respect to "appellations of origin." Hen ce, to the extent that appellations of origin are
beyond the scope of the TRIPS Agreement, it may be argued that Article 24.5 does not apply to
conflicts arising between trademarks and similar ap pellations of origin.  Additionally, it has been
argued that not only is opposition to registration of an appellation of origin on relative grounds due to
existence of prior trademark rights not permitted under Article 5(6) of the Lisbon Agreement, but also
that a junior appellation can effectively expropriat e, without payment, the goodwill and renown of a
senior similar trademark.  See, e.g. "Topical Issu es of the Protection of Geographical Indications", by
Mr. Florent Gevers published by WIPO in Symposium on the International Protection of
Geographical Indications in the Worldwide Context  1997, at page 157;  "Geographical Indications
and Trademarks: Harmony or Conflict?" by Mr. Henning Harte-Bavendamm at page 6, published byIP/C/W/192
Page 26
WIPO in document WIPO/G EO/CPT/99/6 in the course of the 1999 Symposium on the International
Protection of Geographical Indications.  In addition, Article 16.1 does not necessarily require a system
of exclusive rights, but rather permits concurrent rights in certain circumstances such as where:  (i)
there is no resulting confusion from the adverse use; or, (ii) by concurrent use rights (for example
pursuant to Article 24.4, 24.6 and 24.8 of the TRIPS Agreement).
E. P ATENTS
13. Section 128 of the Patent Law states that compulsory licences and their conditions are to be
treated like a voluntary licence between the patentee and another party.  Please explain in detail the
implications of that provision.
Section 128 is merely procedural and does not impact upon substantive rights such as the
determination of licence terms or whether a compulsory licence should be granted.  This section is
relevant with regard to the operation of licences generally as set forth in sections 84 to 91.
14. Please describe in detail the manner in which plant varieties are protected in Israel and cite
to the appropriate provisions of law.
Plant varieties are protected in Israel pursuant to patent law, notwithstanding section 7(2) of
the Patents Law, if the new plant variety results from a patentable plant;  e.g. a patentable transgenic
plant.  In addition, plant varieties are protected pu rsuant to the Plant Breeders' Rights Law which law
is based upon the International Convention for the Protection of New Varieties of Plants (UPOV)(1991 Act).  Patent and breeders' rights protection can be overlapping.  A protectable variety is one
which is new, distinctive and is sufficiently uniform and stable as to its fundamental characteristics.
Applications for registration are subject to examination and opposition proceedings.  Registered rights
may also be challenged on validity grounds subsequent to registration.  The term of protection varies
from twenty to tw enty five years depending upon the type of plant variety.  The holder of a plant
breeder's right may prevent any other person from exploiting the variety in respect of which the right
has been granted.  Civil remedies include injunctions, damages, delivery up, punitive damages and
costs.  Knowingly infringing a registered breeder's right is also a criminal offence.  Notably, plant
varieties per se are not within the scope of the TRIPS Agreement.
F. U
NDISCLOSED INFORMATION
15. Section 7(a)(1) of the Commercial Torts Law states that a person shall not be liable for
misappropriation of a trade secret if the knowledge latent in the trade secret came into his possession
in the course of his employment with the owner of the trade secret and such knowledge became part of
his general professional skills.  Please explain in detail what is covered by that section and provide
examples of what would and would not be included.
This section was recently interpreted in Fromer and Checkpoint Ltd v. Radgard Ltd , Labor
Appeal 164/99, National Labor Court (June 4, 1999, not yet reported) following a claim for breach of
a non-compete clause in the employment contract between the plaintiff and the former employee and
seeking to prevent said employee from working for the defendant for a period of 22 months.  In light
of, inter alia , section 7(a)(1) of the Commercial Torts Law, court held that the former employee could
be restrained from working for a competitor of the right holder where the plaintiff can establish:  (i)
the existence of a trade secret;  (ii) a written contract between the right holder and the employee
evidencing confidentiality arrangements;  (iii) use of the trade secret by the former employee in the
course of his employment at the competitor in a manner likely to cause actual damage to the plaintiff.IP/C/W/192
Page 27
16. Please describe in detail the way in which the appropriate agencies in the Government of
Israel protect undisclosed test and other data submitted to obtain marketing approval for
pharmaceutical and agricultural chemical products against unfair commercial use.
All undisclosed test and other data submitted to a government agency for the purpose of
obtaining marketing approval for new or existing chemical entities contained in a pharmaceutical and
agricultural chemical product are held in confidence and are not open to public inspection.  See
section 23(b) Protection of Privacy Law;  section 117 of the Penal Law and Rules 42.5 et seq.  of the
Civil Service Rules and Bylaws (the transgression of such bylaws constitute both disciplinary
violations and criminal violations).
17. Please describe in detail requirements are imposed on government employees to ensure that
such data is not disclosed.
See response to question 16 above.
G. ENFORCEMENT1
General Provisions
18. Please describe how the Government of Israel meets the requirements of Article 41of the
TRIPS Agreement, including Article 41.1, 41.2, 41.3 and 41.4.  In particular, please explain how  the
laws of Israel provide for effective action against infringement of intellectual property rights asrequired by Article 41.1 of the TRIPS Agreement.
The general obligations contained in Article 41 are met by Israeli law. In particular:  (1) As
more fully detailed in response to question 10 from Japan, above, enforcement procedures and
adequate remedies are available with respect to intellectual property rights;  (2) Procedures are fairand equitable although the costs of litigation will vary depending on the complexity of the matter and
the choice of representation;  (3) Decisions on the merits must be reasoned and written (Civil
Procedure Rule section 190; Criminal Procedur e Rules 182-183;  and, Administrative Courts Law,
section 2);  and, (4) All decisions of first instance in the area of intellectual property can be appealed
by right.
In addition, see responses to question 10 from Japan above, with regard to actions available
against infringements of intellectual property rights.
19. Please identify which courts have original jurisdiction over  intellectual property
infringement cases, and which courts have appellate  jurisdiction to review their decisions? What
legal limitations are placed on the ability of a party to have procedural rulings and final decisionsreviewed by the appellate bodies you have identified?  (Article 41 of the TRIPS Agreement)
The ordinary courts (the Magistrates Courts, the District Courts and the Supreme Court) have
jurisdiction over IPR infringement cases.  The court of first instance for design and patent
infringement is the District Court (see section 51(1) of the Patents and Designs Ordinance andsection 188(b) of the Patents Law, respectively).  The court of first instance also has jurisdiction over
applications for preliminary remedies.  The court of first instance with regard to infringement of
copyright and related rights, registered and unregistered trademarks, appellations of origin,
geographical indications, copyright and related rights, confidential information and integrated circuits
will be the Magistrates Court where the amount claimed is less than One Million New Shekels
                                                     
1 For each of the responses provided to the questio ns below, please cite to all relevant statutes,
regulations or other legal authority under Israel's law.IP/C/W/192
Page 28
(approximately US $250,000) and the District Court where the amount claimed exceeds one million
new shekels (see section 51 of the Courts Law).  Appeals from the Magistrates courts lay with the
District court with further appeals to the Supreme Court. Appeals from the District court lay with the
Supreme Court.
20. Please identify any administrative agencies that have jurisdiction over intellectual property
infringement matters and describe in detail the scope of their jurisdiction. (Article 41 of the TRIPS
Agreement)
Administrative agencies do not have jurisdiction of intellectual property infringement matters.
Sole jurisdiction over intellectual property infringements lay with the law courts.
21. Please identify which courts have appellate jurisdiction to review the decisions by the
administrative agencies identified in response to Question 3 and describe in detail the scope of their
jurisdiction.
Since administrative agencies do not have jurisdiction over intellectual property infringement
matters this question is not applicable to Israel.  The reference to "question 3" appears not to be
connected with administrative agencies.
Civil and Administrative Procedures and Remedies
22. Please describe the procedures followed by the courts and/or administrative bodies for
notifying defendants that civil judicial proceeding s have been initiated against them.  Also, describe
the type of information provided in the not ice.  (Article 42 of the TRIPS Agreement)
Notice to the defendant of the commencement of an action, or a motion, will be made by the
Court where the plaintiff is pro se.  Where plaintiff is represented his counsel is required to make
formal service of process upon the defendant in the manner prescribed at Chapter 32 of the Civil
Procedure Rules and Rule 475A(a)(2) as a condition precedent to maintaining the action. With respect
to goods detained by the Customs Authorities, commensurate with such detention written notice of
such shall be transmitted to the apparent owner of the material so detained (section 200A(a)(2) of the
Customs Ordinance).
23. Do parties have the right to be represented by independent legal counsel in civil judicial and
administrative intellectual property (IP) cases, and are there any limitations on that right?  Are there
any special requirements concerning mandatory personal appearances by parties?  (Article 42 of the
TRIPS Agreement)
Absolutely.  Parties can be represented by a lawyer of their choice .  There are no special
requirements concerning mandatory personal appearance by parties unless specifically ordered by the
Court (see sections 472 and 474 of the Rules of Civil Procedure).
24. What requirements must a foreign party meet to initiate a proceeding in the courts and
administrative bodies identified above that is not required of a national or resident of your country?
None.
25. Please describe any limitations on a party's ability to substantiate a claim or to present
relevant evidence in civil judicial and administrati ve IP cases.  (Article 42 of the TRIPS Agreement)
Within the context of the rules of evidence and civil procedure there are no limitations on a
party 's ability to substantiate a claim or to present evidence.IP/C/W/192
Page 29
26. Describe the mechanisms for identifying and protecting confidential information in civil
judicial and administrative IP cases.  (Article 43.1 of the TRIPS Agreement)
Upon request of a party or upon its own initia tive, any court (tribunal or other judicial or
quasi judicial authority) may issue protective orders to protect confidential information arising in the
course of any judicial or administrative proceedings, including the issuance of orders relating to the
non disclosure of any trade secret disclosed in the context of such matters (see section 23 of the
Commercial Torts Law).
27. What provisions ensure that intellectual property infringement cases are handled in an
expeditious manner and what provisions are available to prevent deliberate delays by the parties to aproceeding?  Under what circumstances are such provisions applied?
Courts will calendar and hear intellectual property matters in the same manner as other
matters.  Court backlogs will vary depending on the court district in question and the Court has
significant control over the timing of matters and ability to prevent undue delays caused by a party orto sanction such behaviour, e.g. by a levy of costs or setting of mandatory hearing dates.  In addition
default judgments are available where a defendant fails to timely respond to plaintiff's complaint (see
section 97 of the Rules of Civil Procedure).  Additionally, as most infringement cases are commenced
with motions for preliminary remedies (such as an Anton Pillar Order, injunctions, etc.) the matters
heard within days or weeks of their being filed with the court.  It should be noted that in intellectual
property matters preliminary injunctive relief often effectively provides the plaintiff with the relief he
seeks and at times the Judge hearing the motion will effectively decide the merits of the matter and
not just the instant motion.
28. Please describe how and under what circumstances judicial and administrative officials may
order parties to produce relevant evidence in civil judicial and administrative IP cases. What types of
evidence or information may be required to be disclo sed prior to trial and how long does this pre-trial
disclosure period generally last?  (Article 43.2 of the TRIPS Agreement)
The judicial authorities may, at the request of an opposing party, order a party to the
proceedings to disclose and produce relevant documents which are, or have been, within that party's
control, as well as to respond to requests for admi ssions and interrogatories (see, primarily, Chapter 9
of the Civil Procedure Rules).  Failure to comply w ith such an order may result in the dismissal of the
action or the defense (see section 122 of the Civil Procedure Rules).  Additionally, where damages
have been claimed the court may require defendants to render an account of the extent of the
infringement (see e.g. section 183(d) of the Patents Law and section 6(1) of the Copyright Law).
Additionally, the courts have authority to order persons to appear (see section 1 of the
Evidence Ordinance and section 73 of the Courts Law).  In limited circumstances the court may
authorize ex parte searches and seizures against defendants and third parties in order to obtain
evidence relevant to civil or criminal enforcement of IPRs (see, for example, sections 5-9 of the
Performers' and Broadcasters' Rights Law;  the Cour t's inherent powers pursuant to section 75 of the
Courts Law and common law;  e.g. Rotem Insurance Co. v. Nahum Rowdner, et. al., Docket T.A.
798/91, motion number 5530/91, District Court Reports, volume 3, 1992. And with respect to
unregistered marks and trade secrets, see secti ons 16-17 of the new Comm ercial Torts Law which
codifies existing case).  Additionally, it is expected that the search and seizure provisions contained in
the Commercial Torts Law will shortly form the model for the codification of similar existing caselaw with respect to other IPRs.  Additional search and seizure authority is set forth at chapter 4 of the
Criminal Procedures Law.IP/C/W/192
Page 30
29. What kinds of actions may judicial and administrative officials take if the party fails to
provide the necessary information?  Please describe the circumstances under which those actions  are
normally imposed in civil judicial and administrative  enforcement actions. (Article 43.2 of the TRIPS
Agreement)
See response to question 28 above.  Moreover, in general contempt of a court order is a
criminal offence.
30. Do judges and administrative officials have the authority to issue injunctions (or equivalent
measures) to order a party to desist from an infringement and to prevent infringing goods from
entering the channels of commerce? Please describe, in detail, the procedures for issuing such
injunctions.  (Article 44.1 of the TRIPS Agreement)
Judges have authority to issue temporary and permanent injunctions to order a party to desist
from an infringement and to prevent infringing goods from entering commerce.  In addition, the
Customs Authority, acting on its own initiative or upon application made by a right holder, has
authority to temporarily suspend the release into free circulation goods which are suspected ofinfringing trademark rights and copyright. For additional details see the response to question 10 from
Japan above and the response to question 49 below.
31. How long in practice does it generally take to obtain the injunctive relief (or equivalent
measures) identified in response to Question 13 from the time of the application to its grant? What
evidence must typically be provided to establish a party’s right to each of the types of relief identified
and what  are the conditions imposed on obtaining su ch relief? (Article 44 of the TRIPS Agreement)
The process for obtaining temporary injunctive relief is generally very quick.  Such motions
are heard by the Judge in charge of hearing motion practice of that particular court often on the sameday which they are filed or within a few days thereafter.  Where an order has been granted ex parte
the court will generally provide the respondent with an opportunity to be heard within several days.
Injunctive relief generally requires a showing of a prima facie case, likelihood of success and
significant harm in the event the relief is not granted.  Evidence is usually by way of affidavit, but
could be otherwise.
32. Article 44.2 provides an exception to the requirement in paragraph 1 for government use or
use by third parties authorized by the government, limiting the remedy for infringement to payment of
adequate remuneration as provided in Article 31(h). Are there any such limitations on remedies in the
laws of Israel?
The State can be a party to an action and damages and injunctive relief can be levied against
the State.  See Civil Procedure Amendment (The State as a Party) Law, 5718-1958 as amended (and
in particular the repeal of section 5 thereof).
33. Please explain whether judicial and administrative officials have the authority to order a
party found to be infringing to pay the right ho lder damages adequate to compensate for the injury
caused by the infringement and expenses, including attorney’s fees.  What factors are considered in
establishing the amount of damages?  (Article 45 of the TRIPS Agreement)
See response to question 10 from Japan, above.
34. Please describe any additional remedies (e.g. disposal of goods and destruction of materials
and implements used to create infringing goods) that  judicial and administrative officials may impose
in civil judicial and administrative IP cases, th e circumstances under which those remedies will beIP/C/W/192
Page 31
imposed.  What factors are considered in determining which kind of remedy to impose?  (Article 46 of
the TRIPS Agreement)
See response to question 10 from Japan, above.
35. Do judicial and administrative officials have the authority to order infringers to provide right
holders with information on third parties involved in the production and distribution of infringing
goods or services and their channels of distribution?  Under what circumstances is this authority
exercised?  (Article 47 of the TRIPS Agreement)
Notably, Article 47 of the TRIPS Agreement is optional. Nevertheless, with regard to
criminal prosecutions pursuant to the Merchandise Marks Ordinance, which relates to trademarks andother intellectual property rights, in order to set forth a defense the defendant is required to give
information regarding the circumstances of the alleged offence.  Pursuant to section 3(2)(b) of the
Merchandise Marks Ordinance, a defense to these offences requires the defendant to prove the
following three elements:  (1) that he had taken all reasonable precautions against committing such an
offence;  and, (2) that upon demand of the prosecutor he gave all the information in his power with
respect to the persons from whom he obtained such goods or things;  and, (3) that he had otherwise
acted innocently.
36. Please explain whether public authorities and officials are exempt from liability for abuse of
enforcement procedures and describe the circumstances in which such limitations do not apply.(Article 48 of the TRIPS Agreement)
The State is not civilly liable for an act done within the scope of lawful authority, or bona fide
in the purported exercise of lawful authority; but it is liable for negligence in connection with such an
act (see section 3 of the Civil Wrongs (Liability of the State) Law, 5712-1952.  Additionally, civilservants may be liable personally for torts committed by them (see section 7(a) of the Civil Wrongs
Law).  In addition, defendants against whom criminal proceedings have been taken wrongfully may
be entitled to financial compensation from the State (see Rules 80-81 of the Rules of Criminal
Procedure).
Provisional Measures
37. Please identify the provisional measures available under the laws of Israel to prevent an
infringement of any intellectual property right occurring and to preserve relevant evidence in regard
to an alleged infringement. (Article 50 of the TRIPS Agreement)
See above response to question 10 from Japan.
38. Please briefly describe:
(a)  any requirements to establish “irreparable harm” to the right holder.  (Article 50.2
of the TRIPS Agreement);
(b)  factors considered by judicial and administrative authorities in determining whether
a "demonstrable risk of evidence being destroyed exists." (Article 50.2 of the TRIPS
Agreement).
Orders for the pre-trial seizure of evidence, such as the "Anton Pillar" type order discussed in
the response to question 10 from Japan, will be granted where a plaintiff can satisfy the following
requirements:  (1) present a strong prima facie case, supported by affidavit or other evidence;
(2) satisfy the court that there is a well established danger that the evidence may be destroyed orIP/C/W/192
Page 32
hidden; and, (3) that the plaintiff will suffer serious harm should such evidence be destroyed or
hidden.
39. For each kind of intellectual property that is the subject of TRIPS, what kind of evidence is
required by right holders to establish ownership of the intellectual property in question and that theirright is being infringed?  (Article 50.3 of the TRIPS Agreement)
There are no legislated provisions regarding what evidence is required to prove ownership
and Judges have wide discretion in determining such.  However, a presumption of ownership will
exist under statute with respect to registered intellectual property rights (see Patents Law section 76,
Designs Law section 3(5), Trademarks Ordinance section 64).  With respect to copyright the work
shall be presumed to be a work in which copyright subsists and the plaintiff shall be presumed to bethe owner of the copyright where his name is indicated on the work in the usual manner of a copyright
notice (see section 6(3) of the Copyright Law).
40. Are right holders required to provide a security or equivalent assurance to protect the
defendant and to provide against abuse and how is that amount determined? (Article 50.3 of theTRIPS Agreement)
Requirements for sureties or bonds would arise pursuant to rules of civil procedure with
respect to pre judgment remedies such as the "Anton Pillar" search and seizure order (discussed
further in question 22 below) and pursuant to sections 18-19 of the Commercial Torts Law.
41. Please briefly describe the following:
(a)  the authority judicial and administrative officials have to adopt provisional measures
inaudita alter parte, and what measures may be adopted inaudita altera parte.(Article 50.4 of the TRIPS Agreement);
(B)  does the exercise of the authorities identified above require a court order?
(Article 50.4 of the TRIPS Agreement).
Inter partes and ex parte pre judgment remedies are available from the Court in appropriate
circumstances. For additional details reference is made to the response to question 10 from Japanabove.
42. For each of the measures identified above, generally how long does it take from the
application for such relief until its grant?
Access to court time for the purpose of obtaining a pre judgment remedy is usually very quick
and heard by the court on the same day or within a few days of the motion having been filed.
43. Please describe the procedures for notifying affected parties after execution of the provisional
measures and initiating a review. (Article 50.4 of the TRIPS Agreement)
In general the notification is given at the time of execution of the provisional measure. Where
an ex parte provisional remedy has been granted, the court will generally order a follow up
inter partes hearing usually within seven days in accordance with the Rules of Civil Procedure.
44. Please describe the kind of information required from applicants to identify goods which are
the subject of provisional measures.  (Article 50.5 of the TRIPS Agreement)IP/C/W/192
Page 33
Strong prima facie evidence of infringement and details adequate to identify the allegedly
infringing goods, their location and the identity of their possessor are necessary in order to obtain an
"Anton Pillar" Order for the seizure of goods.
45. Please describe the nature of the proof required from applicants before such provisional
measures are granted for each type of intellectual property protected under TRIPS (Article 50 of the
TRIPS Agreement).
Proof required for obtaining provisional remedies, in respect of alleged infringements of any
type of intellectual property, requires prima facie evidence, in the form of affidavits or other reliable
evidence, showing a likelihood of success on the claim of infringement.  See chapter 28 of the Rules
of Civil Procedure; and, response to question 10 from Japan above and question 39 above.
46. Please describe the procedures for revoking or cancelling provisional measures in judicial
and administrative enforcement actions if proceedings leading to a decision on the merits of a case
are not initiated within a reasonable time. What constitutes a “reasonable time period” to initiate
proceedings? (Article 50.6 of the TRIPS Agreement).
Provisional remedies will generally lapse where: (i) the plaintiff fails to serve his statement of
claim in the main action within 7 days from the day the preliminary remedy is ordered;  or, (ii) the
cause of action is dismissed, struck out, ceased or th e judgment is satisfied.  See, e.g. civil procedure
rule 373 and Orkon v. Zaks, T.A. 2233/90, 1992 (1) District Court Reports 184 (attachments and
mareva  injunctions);  civil procedure rule 382 (preventing departure from Israel);  Rotem Insurance
Co. v. Nahum Rowdner , T.A. 798/91, 1992 (3) Dist. Ct. Rep. 184,  Commercial Torts Law sections 14-
20 (Anton Pillar  Orders).
47. Whether judicial and administrative officials have the authority to order that the defendant be
compensated for any injury suffered as a result of a lapse or revocation of provisional measures.
(Article 50.7 of the TRIPS Agreement)
Yes.  Where defendants have been injured as a result of a lapse or revocation of a provisional
measure they may apply to the court for commensurate compensation.
Border Measures48. Please identify the competent authority in Israel authorized to accept applications for a
request to suspend release of suspected infringing goods.  (Article 51 of the TRIPS Agreement)
The Customs Authority. Under section 200A et. seq. of the Customs Ordinance
applications for a request to suspend the release of suspected infringing goods are made to the
Director of Customs.  In addition to the above authority a right-holder may always apply to the
courts for an temporary or permanent order to suspend the release of infringing goods.
49. Please describe the procedures for protecting intellectual property at the border
(e.g. application, required information, process and time-frame for notifying applicant of acceptance,
effective period for border enforcement action).  (Article 52 of the TRIPS Agreement)
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 request that the customsauthority suspend the release into free circulation of goods which prima facie involve infringements
of copyrights or trademarks.  Pursuant to the above noted statutes, 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.  Detention of goods protectedIP/C/W/192
Page 34
by other types of intellectual property rights require a court order and not mere suspicion.
The procedures for protecting intellectual property at the border, as set forth primarily at
section 200A et seq.  of the Customs Ordinance, are as follows:
Counterfeit trademarked goods or pirated copyrighted works may be detained by the Customs
Authority of their own initiative, or upon request of a right-holder, where there is a  reasonable
suspicion that the importation of counterfeit trademarked or pirated copyright goods may take place.
Where goods have been detained by the Customs Authority on their own initiative efforts will be
made to so inform the relevant right holder in orde r to enable him to take appropriate further steps.
An application to detain goods should include the identity of the right holder and evidence showing
that he is the right holder, and as much information as possible to describe the allegedly infringinggoods and their point of arrival, information which shows a prima facie suspicion that the goods are
infringing and a written personal guarantee to indemnify for damages caused by a wrongful detention
of goods.  If the complainant is represented, then the attorney will have to file a power of attorney
with the Customs Authority.
Where the Customs Authority accepts complainant's application the Customs Authority will
begin looking for the suspected goods.  (If the application is dismissed then any guarantees filed by
the complainant will be immediately returned to him.)  If the suspected goods are found, they will be
detained for a period of  three working days and the right holder and importer will be immediately
informed of such.  The Director of Customs may extend this period by an additional three workingdays if necessary.  This detention will lapse if the complainant (the right holder) does not file an
irrevocable bank guarantee with the Customs Authority in an amount deemed adequate to cover the
importer's damages should the detention ultimately prove unjustified.  Upon deposit of the bank
guarantee the Customs Authorities will disclose to the complainant the identity and address of the
importer and also provide the complainant with examples of the seized goods.  Thereafter, if thecomplainant does not serve his statement of claim upon the importer within ten working days the
detention order will lapse, however this ten day period can be extended by an additional ten days
where the Director of Customs determines it fair and necessary to do such in light of the
circumstances.  Where a court action has been commenced the detained goods will not be released
unless so ordered by the court or where the court action has been terminated or dismissed.
In circumstances where it is absolutely clear that the goods are infringing the Customs
Authority may confiscate such goods, even in the absence of a complainant, pursuant to sections 2
and 35 of the Consumer Protection Law;  and, se ctions 188 and 204(4) of the Customs Ordinance.
In addition and without prejudice to the other rights of action open to the right holders, under
new section 7C of the Copyright Ordinance and new section 59A of the Trademarks Ordinance, at the
end of a hearing the courts have the authority to order the destruction or disposal of infringing goods
in accordance with the principles set out in Ar ticle 46 of the TRIPS Agreement.  In regard to
counterfeit trademark goods, new section 59A of th e 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.  These new remedies comply with Article 59 of theTRIPS Agreement.
Similarly, pursuant to sections 2, 17 and 35 of the Consumer Protection Law and section 204
of the Customs Ordinance, the customs official 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, may exercise their authority over infringing goods whichIP/C/W/192
Page 35
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 country by or with the consent of the right holder, or to goods in transit.
50. Are procedures available to stop the export of infringing goods and goods shipped in-transit?
Exports and goods in transit, which are covered by existing law, can be detained by the
Director of Customs only upon receipt of a court order directing such detention. In the absence of a
court order the Customs Authority will make efforts to notify the Customs Authorities in the country
of destination as to the arrival of potentially infr inging materials.  In addition, we note that the
provision in Article 51 of the TRIPS Agreement which specifies that Members may providecorresponding procedures concerning the detention of goods destined for exportation is optional.
51. Please explain what evidence constitutes prima facie infringement for purposes of Article 52
of the TRIPS Agreement?
There is no set standard, however sufficient evidence might be an affidavit from the
complainant or possibly where goods are obviously infringing then the themselves may constitute
prima facie evidence.
52. Please verify that the competent authori ties identified above are empowered to require
security or equivalent assurance. (Article 53 of the TRIPS Agreement)
Yes.  The customs authorities are empowered to require security or an equivalent assurance.
See sections 31 and 200A et seq.  of the Customs Ordinance.
53. What procedures exist for notifying applicants of the suspension of release? (Article 54 of the
TRIPS Agreement)
Both the complainant and the importer will be immediately notified in writing where goods
have been detained (see section 200A(a)(2) & (3) of the Customs Ordinance).
54. Please identify the fora in which an applicant/party may initiate proceedings on the merits
that will allow customs authorities to hold the goods beyond ten working days. (Article 55 of the
TRIPS Agreement)
See response to question 19 above.
55. Do judicial and administrative officials have the authority to order the applicant to pay the
importer, consignee or owner compensation for injury caused by wrongful detention or through the
detention pursuant to Article 55. (Article 56 of the TRIPS Agreement)
The judicial authorities alone have jurisdiction to order a complainant to pay compensation
for wrongful detention of goods.
56. Please explain the procedures for allowing right holders an opportunity to inspect suspect
goods that have been detained by customs author ities.  (Article 57 of the TRIPS Agreement)
After submission of a bank guarantee by the complainant the Customs Authority will allow
the complainant to inspect the detained goods an d provide him with the name and address of the
importer (see section 200A(d) of the Customs Ordinance).IP/C/W/192
Page 36
57. Please explain whether the competent authorities in Israel are empowered to act ex officio
and, if so, the enforcement action that may be taken.  (Article 58 of the TRIPS Agreement)
Yes.  The Customs Authority may, on their own initiative, detain items which they suspect
infringe copyright and trademark rights.  See section 200A(a) of the Customs Ordinance.  Notably,Article 58 is an optional provision, albeit one which Israel has chosen to implement.
58. Please describe the remedies for infringing goods (i.e. destruction, disposal or both).
(Article 59 of the TRIPS Agreement)
See response to question 10 from Japan, above.
59. Please clarify whether de minimis import s are excluded from the border measures under
Israel's law.  If so, what constitutes a de mi nimis import?  (Article 60 of the TRIPS Agreement)
Imports for personal use which are of a non commercial quantity will not be detained by the
Customs Authority (see section 200D of the Customs Ordinance).
Criminal Procedures60. Please explain how Israel meets its obligations under Article 61 of the TRIPS Agreement to
provide for deterrent criminal sanctions for trademark counterfeiting and copyright piracy?
Trademark counterfeiting - Article 61 of the TRIPS Agreement requires members to provide
criminal procedures and penalties at least in re spect of "wilful trademark counterfeiting" on a
commercial scale. The term "counterfeit trademark goods" is defined in the footnote to Article 50 as
"...any goods, including packaging, bearing without au thorization a trademark which is identical to the
trademark validly registered in respect of such goods, or which cannot be distinguished in its essential
aspect from such a trademark, and which thereby infr inges the rights of the owner of the trademark in
question under the law of the country of importation."
Pursuant to section 60 of the Trademarks Or dinance and or section 3 of the Merchandise
Marks Ordinance it is a criminal offence, punishable by up to one year imprisonment and fines of up
to 19,300 New Shekels (approximately US $4,800.00, see section 61 of the Penal Law) where aperson or entity, with intent to deceive, commits or attempts to commit or aids or abets any other
person in committing any of the following acts:  (a) not being the proprietor thereof makes use of a
registered trademark or an imitation of such a mark upon the same class of goods (including
packaging; section 3 Merchandise Marks Ordinance) as that in respect of which the mark is
registered;  (b) sells, stores for the purposes of sale, or exposes for sale, goods bearing a mark the useof which is an offence under section (a) above;  (c) uses for the purpose of advertising goods, in the
press or in some other manner, a mark duly registered by another person in respect of goods of the
same class;  (d) makes, engraves, prints or sells any plate, die, block or other representation of a duly
registered mark or any other imitation thereof for the purpose of enabling any person other than the
registered proprietor of such mark to make use of such mark or an imitation thereof in connectionwith goods of the same class as those for which it is registered.
In addition to the above penalties, the court may issue permanent injunctions against a
counterfeiter (section 61 of the Trademark Ordinance) and order the forfeiture or destruction of any
goods, wrapping, packing or advertising material, or blocks, dies or other apparatus for printing themark or other material in respect of which the offence was committed (section 62 of the Trademark
Ordinance).  Similarly, forfeiture, destruction or transfer to the right holder of infringing goods is
available as a civil remedy pursuant to section 59A of the Trademarks Ordinance.IP/C/W/192
Page 37
Copyright - Pursuant to section 3 of the Copyri ght Ordinance it is a criminal offence for a
person or entity to knowingly:  (a) Make an infringing copy for purposes of sale or rental;  (b) Sell,
rent or display for sale or rental, for commercial purposes, an infringing copy;  (c) Distribute
infringing copies for commercial purposes or in quantities that may harm the rights holder;  (d)
Display in public, for commercial purposes, an infr inging copy;  (e) Import an infringing copy into
Israel for sale or rental;  (f) Make or possess a device for making infringing copies, or display a work
for his own benefit without the rights holder's consent.  The penalty for such criminal violations is up
to three years imprisonment and fines of up to one million new shekels (approximately
US $250,000.00)
61. Please explain whether and under what circumst ances seizure, forfeiture and destruction of
infringing goods and any materials and implements are available as remedies in wilful trademark
counterfeiting or copyright piracy cases and describe the conditions under which such penalties
would be imposed. (Article 61 of the TRIPS Agreement)
Seizure, forfeiture and destruction of infringi ng goods, along with materials used in their
manufacture, are available in cases of wilful trademark counterfeiting and copyright piracy. Forexample, section 7 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.  In addition, the
remedy of delivery up is provided by case law, see Yotabin v. Mai , Civ.App. 144/79, 34(2) S.Ct.Rep.
344 and statute.
Destruction of counterfeit goods may be ordered in appropriate cases in accordance with
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.
62. Please provide statistical information related to civil copyright, trademark, geographical
indication, industrial design, patent, integrated-circuit layout design, and trade secret enforcement
for each of the years 1996, 1997, 1998, and 1999, including the number of cases filed;  injunctions
issued;  infringing products seized;  infringing equipment seized;  cases resolved (includingsettlement);  and the amount of damages awarded.
Statistical information of the sort requested is not maintained.
63.  Please provide statistical information related to criminal enforcement in the area of
copyright piracy and trademark infringement for each of the years 1996 and 1997, including the
number of raids, prosecutions, convictions, and th e amount of fines and/or jail terms (including
whether the fines were paid and whether the jail term was actually served or was suspended) and any
other information establishing that the criminal system operates effectively to deter copyright piracy
and trademark counterfeiting.
Such statistical information is not readily available and not centralized in any one agency. For
example some of the prosecutions are carried out through use of private criminal complaints instituted
by the plaintiff himself, while others are handled through the various specialized intellectual property
crimes police units situated in different parts of Israel.  Still other prosecutions are being handled byvarious  regional offices of the State's Attorneys Office.  The investigations and prosecutions have
been initiated against small store owners who trade in counterfeit items to manufacturers of such
items.  As a result of the State's investments in enforcement infrastructure in 1999 and the first half of
2000, a great many indictments have been filed.  Thus far some have ended in convictions with six toIP/C/W/192
Page 38
twelve month suspended jail sentences and fines against for example persons dealing in counterfeit
goods, and other cases are still pending.
64. Please describe any new initiatives the Government of Israel has planned to improve
enforcement, particularly criminal enforcement, of intellectual property rights.
Some recent initiatives for further improving th e enforcement of IPRs include the addition of
approximately 15 policemen to the existing 12 man intellectual property crimes unit, as well as the
addition of approximately six prosecutors who will focus on intellectual property crimes.  Other
activities include, inter alia :  The Attorney General issues guidelines and directives to all government
offices directing them to review all intellectual prop erty in use in the public service for the possibility
of infringement and to take steps to ensure that infringements will not occur and to only use supplierswho can verify that their products are non infringing;  Continuing education programs designed to
raise intellectual property awareness for prosecutors, governmental offices and judges;  Upon a
Directive issued by the Prime Minister, establishment of a special inter-ministerial forum for
coordinating enforcement of intellectual property rights;  The Investment Center of the Ministry of
Industry and Trade, which provides investment incentives, requires each applicant from theaudiovisual sector to make a declaration that the production of the approved project complies with all
intellectual property laws;  Companies receiving grants from the Chief Scientist's Office are required
to obligate themselves not to violate any IPRs within the framework of any of their activities or risk,
among other measures, forfeiture of their grants;  All government tenders require a written declaration
from each bidder stating that he is the owner of the IPR that are detailed in his proposal, be theypatents, copyrights or other protected rights.  In the event that the IPR belongs to a third party, the
declaration must specify how the bidder obtained th e right to use the said rights; and, The Education
Ministry has initiated a programs in school curriculum to educate students with regard to the
importance of IPRs for encouraging innovation and creative works as well as to sanctions for their
transgression.
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