RESTRICTEDWORLD TRADE
ORGANIZATIONIP/Q/ISR/1
IP/Q2/ISR/1
IP/Q3/ISR/1
IP/Q4/ISR/1
27 September 2000
(00-3913)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
ISRAEL1
The present document reproduces the introductory statement made by the delegation of Israel,
the questions put to it and the responses given in connection with the review of legislation undertaken
at the Council's meeting of 26-29 June 2000.2
_______________
I. INTRODUCTORY STATEMENT
The delegation of Israel welcomes this opportunity to review its intellectual property
legislation and recent developments in this field before this forum.  Before proceeding to thesubstance of our opening statement, please allow me to note our appreciation to the efforts made by
the WTO Secretariat in arranging this review and to the members of the WTO that have shown an
interest in Israel's TRIPS legislation.
The Israeli legislation provides for a very high level of protection for intellectual property
rights.  Indeed, even prior to this year, Israel Intellectual Property Law was generally compliant with
TRIPS and at times set levels of protection higher than those of TRIPS.  During the transition periodnew legislation was enacted to complete conformity with TRIPS and considerable human and
financial resources were invested in enforcement infrastructure and intellectual property awareness
raising.  Israel now maintains or exceeds the TR IPS minimums and remains committed to maintaining
a legal environment which protects intellectual property rights.
In the English language copies of Israel legislation, which were notified to the WTO, our
TRIPS implementation amendments often appear in the context of a separate amending law.  In our
Hebrew language legislation those amendments have already been integrated into the text of the
existing legislation which they amend.  Integrated English language versions, with re-checked
translations, should be available shortly.
A. G
ENERAL INTRODUCTION
Intellectual property rights in Israel are protected through a comprehensive system of
statutory law and common law covering acquisition, maintenance, and enforcement of rights in
                                                     
1 As regards laws and regulations notified by Israel under Article 63.2 of the Agreement, reference is
made to documents IP/N/1/ISR/1; IP/N/1/ISR/C/1 to  9, IP/N/1/ISR/D/1 and 2, IP/N/1/ISR/G/1 and 2,
IP/N/1/ISR/I/1, 2 and 3, IP/N/1/ISR/L/1 and 2, IP/N/1/ISR/P/1, 2 and 3, IP/N/1/ISR/T/1, 2 and 3 andIP/N/6/ISR/1.
2 The minutes of this meeting have been circulated as document IP/C/M/27.IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 2
patents, designs, registered and unregistered trademarks, appellations of origin, geographical
indications, copyright and related rights trade secrets, topographies of integrated circuits, and new
plant varieties.
Israeli intellectual property law has its roots in British law and since 1948 many amendments
have been made to those laws.  Modern trends in Israeli intellectual property law are often drawn
from common law jurisdictions, as well as the emerging body of European Union law, and the
proposals of the World Intellectual Property Organiza tion.  It should be noted that the protection of
intellectual property rights is not only through specific intellectual property law legislation, but also
additional and overlapping protection can be obtained, in appropriate circumstances, pursuant to other
legislation such as the Commercial Wrongs Law, the Civil Torts Ordinance, the Law Against UnjustEnrichment and the Consumer Protection Law.
Israel has ongoing intellectual property committees of experts composed of government
persons, non-governmental organizations and indi viduals.  These committees regularly review all
aspects of domestic and international intellectual property law and recommend periodic amendmentsto existing legislation.  Additionally, Israeli courts , which adhere to a common law tradition, regularly
enhance the development of intellectual property law.  Israel is a member of most of the major
international agreements on intellectual property rights, and is open to new developments, ideas and
theories in this evolving field of law.
Enforcement of intellectual property rights is provided for through a comprehensive statutory
and common law system of civil, administrative and criminal mechanisms.  In civil enforcement, right
holders are able to obtain quick access to a variet y of pre judgment remedies and final remedies.
Examples of preliminary remedies include injunctions and ex parte  search and seizure orders.
Examples of final remedies include, permanent injunctions, delivery up, destruction of the offendinggoods and statutory and actual damages and costs.  At the administrative level the customs regulations
have been coordinated with copyright and trademark legislation and customs searches and seizures are
available upon a prima facie suspicion of infringement.  Criminal sanctions are available for
counterfeiting of trademarks and copyrights and related rights and other wilful use of false trade
descriptions and violations of injunctions may also constitute criminal offences.
As a general matter, civil and criminal cases are heard in Israel in the general court system.
Decisions of Court’s of first instance may be appealed.  Detailed criminal and civil procedure
regulations exist which safeguard the integrity of the process and the rights of the litigants.  Criminal
proceedings are generally initiated by the State.  Significantly, in certain intellectual property cases,
private persons may also initiate criminal proceedings.  The Civil system provides for various options
for filing and handling cases, and the regulations provide for processes such as pre-trial procedures,discovery, preliminary relief, injunctions, hearings, motions, appeals and more.  We should note that
the ease of availability and range of available orders and injunctions issued by Israeli courts is
generally considered efficient and beneficial to rights holders.
Israel is committed to effectively fight intellectual property violations and to this end steps
have been taken by the Ministry of Justice, the Attorney General, the Police, the Ministry of Industry
and Trade, the Tax Authority, the Ministry of the Treasury, the Commissioner of Consumer
Protection, the Ministry of Education and others to  jointly combat intellectual property violations.
For example a special intellectual property police force unit has been established as well as a special
intellectual property prosecutors unit.
Over the last year or so Israel has also undertaken an ongoing, extensive public awareness
program, designed to educate the public and government workers on the issue of intellectual property
rights and violations, enforcement mechanisms, and consequences of violations.IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 3
B. THE NEW LEGISLATION DESIGNED TO IMPLEMENT THE TRIPS A GREEMENT
During the transition period several legislative instruments were enacted in order to conform
existing legislation with the requirements of TRIPS. For example:  (i) In 1996 a rental right for sound
recordings and films was enacted, which this year was extended to also include computer programs.(ii) The Commercial Torts Law;  (iii) The Law for the Protection of Topographies of Integrated
Circuits;  (iv) The TRIPS Omnibus Implementation Law;  and, (v) Secondary legislation in the form
of certain Orders needed to extend rights to all WTO nationals pursuant to the laws for the protection
of integrated circuits, copyrights and related rights.  (Due to nuances in Israeli legislation, extension
of industrial property rights to WTO nationals does not require secondary legislation.)
The Commercial Torts Law came into effect in November of 1999 and  had the following
primary effects:  (i) It broadened the scope of passing off which gave added protection to trademarks;
(ii) It incorporated existing common law trade secret protection;  and, (iii) it codified, at least with
regard to passing off and trade secrets, the common law "Anton Piller" preliminary remedy.  This
remedy provides for an ex parte order appointing a receiver, who is empowered to enter the premises
of defendants and third parties, in order to search for, and seize, documents, evidence and prima facie
infringing matter for the purposes of preserving evidence and for preventing the free circulation of
goods which the court may ultimately deem infringing.
A new sui generis law for the protection of Topographies of Integrated Circuits, which
incorporates the relevant portions of TRIPS and the Washington Treaty on Integrated Circuits, enteredinto force on 1 January 2000.
The TRIPS Omnibus Implementation Law and the accompanying TRIPS Orders also entered
into force on 1 January 2000.  This legislation was intended to fill any gaps which existed between
existing Israel law and the TRIPS Agreement.  The primary elements of these legislative instrumentsare as follows.
With regard to copyright and related rights:
- the revision of the definition of a computer program to take into account the
Article 10 reference to "in source or object code";
- extending rental rights to include computer software in addition to sound recordings
and films;
- extending phonogram producers' rights under Article 14.2 of the TRIPS Agreement to
nationals of all WTO Members;
- extending performers' rights under Article 14.1 of the TRIPS Agreement to nationals
of all WTO Members;
- extending the term of protection for performances from 25 to 50 years;- providing additional factors upon which to base eligibility for obtaining protection
with regard to films and architectural wo rks in conformance with Article 4 of the
Berne Convention (Paris Act 1971);
- enhancing the remedy for the destruction of infringing items;  andIP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 4
- coordination with the Customs Regulations so as to enable detention of allegedly
infringing materials upon prima facie suspicion of infringement in accordance with
the TRIPS Border Control provisions.
With regard to trademarks and geographical indications:
- enhanced protection was provided for registered and unregistered well-known
trademarks in accordance with the provisions of Article 6 bis of the Paris Convention
and Article 16.2 and 16.3 of the TRIPS Agreement.  Additionally, it should be noted
that the passing off provisions of the Commercial Torts Law provide for additional
and overlapping protection for well-known trademarks;
- recognition of priority rights from prior trademark applications filed in any WTO
Member State;
- additional protection for geographical indications and enhanced protection for spirits
(wines had already received TRIPS-level protection) together with appropriate
balancing of such rights with rights of similar trademarks;
- the period of cancellation for non use was raised from two years to three;
- modifications were made to the telle quelle provisions to better conform with
Article 6 quinquies  of the Paris Convention;
- specific protection, in conformance with Article 11 of the Paris Convention was given
to trademarks which are temporarily in use in Israel during an internationalexhibitions;  and
- remedies for trademark infringement and counterfeiting were enhanced by, inter alia ,
provision of remedies for the destruction of infringing goods or their transfer to the
right holder.  In addition coordination was made with the Customs Ordinance to
allow for detentions of prima facie infringing items in accordance with the TRIPS
border provisions.
With regard to industrial designs:
- priority rights were extended to prior applications originating in any WTO Member
state;  and
- grace period provisions for dealing with lapsed registrations were clarified.With regard to patents:
- priority rights were extended to prior applications originating in any WTO Member
state and patents were made available in all fields of technology;
- clarifications were made to the provisions which place the burden of proof upon a
defendant with regard to the infringement of process patents for obtaining a productwhere such resulting products are identical.  Under the new law, such a defendant
will bear the burden of proving that he used a different process;  and
- the compulsory licence scheme was severely curtailed and it is unlikely that there will
be any future compulsory licence applications.  In particular, a provision relating toIP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 5
compulsory licenses with regard to medicines was repealed and local working now
includes importation into Israel and the scope of any compulsory licence must be
limited to production primarily for the local market.  Provisions regarding dependent
patent compulsory licenses and calculations of royalties were adjusted to bring theminto line with TRIPS.  Nevertheless, in lig ht of these changes compulsory licensing is
effectively no longer practical in Israel.
With regard to Customs Authorities:
- special provisions were made to enable the Customs Authorities to detain goods
which are suspected of infringing trademark rights and copyrights.  These newprovisions were modelled on the TRIPS Agreement, Part III, Section 4, Border
Measures.
Since issues regarding statutory damages, compulsory licensing of patents and protection of
computer software and appeared in several of the questionnaires we would like to briefly address eachof these.
With regard to statutory damages:
- Israel has had a system of statutory damages in respect of copyright for many years.
An amalgamation of case law suggests that while statutory damages are primarily
compensatory and evidentiary in nature wh ere the infringement was intentional the
judicial trend is to apply the maximum amount of permitted statutory damages in an
effort to fashion a remedy which is both compensatory and deterrent in nature.
With regard to computer programs:
- computer programs have been treated as copyright by Israeli Courts since the
mid-1980s and by copyright legislation since the late 1980s.  In the context of TRIPS
implementation the statutory definition of computer programs was changed in order
to make specific reference to source code and object of computer programs.
With regard to compulsory licences:
- compulsory licensing of patents has been severely reduced as a result of TRIPS
because local working now includes importation and production under a compulsory
licence must be limited to primarily the supply of the domestic market.  Nocompulsory licences have been granted since 1995 and in light of the recent changes
it is unlikely that there will be any future compulsory licence applications.
C. C
ONCLUSION
In conclusion, Israel has long been committed to a strong intellectual property regime.  The
Courts have consistently emphasized the importance of intellectual property rights and the need to
construe such rights with broad coverage in order to encourage innovation.  In addition, organizations
representing intellectual property rights holders from Israel and abroad are active in Israel and often
work in cooperation with government agencies to enhance protection.  As intellectual property has
evolved and become increasingly sophisticated, so have Israeli laws and jurisprudence evolved tomeet these changes.  The extensive civil and criminal remedies provided for are intended to act as a
deterrent to violators, and to provide for meaningful remedies to the injured.  The severe punishments
available for criminal offences can act as a deterrent to potential offenders.  Holders of rights haveIP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 6
thus been able to rely on progressive legislation, and enlightened judicial interpretations of these
statutes in order to enjoy effective intellectual property rights in Israel.
II. RESPONSES TO QUESTIONS POSED BY AUSTRALIA
A. COPYRIGHT AND RELATED RIGHTS
1. Please provide any further information, wh ere possible, on the effective meaning and
scope of the term "compilation" in the definiti on 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 the Berne 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 Sectio n 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 copyrigh t protection in Israel cover the use and
dissemination of copyright works on digital ne tworks 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?
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, poli cy 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 deemed
literary 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.IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 7
4. What provisions or allowances are there for Government use of copyright works,
including computer software, and is there a mechanism for compensating the owner of
copyright in any such case?
Israeli 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 oth er legal or administrative guidance is available to
determine:
(a) the scope of allowable educational broadcasts under Section 7(A) of the
Copyright Ordinance.
Section 7(A) of the copyright Ordinance was in force during a limited period until
31 March 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 "pri vate 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 purposes 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 portion
used 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
copyright.
Beyond the exceptions generally applicable to works, there are no limitations or exceptions
which apply to computer software protected by copyright.
B. TRADEMARKS
6. Are there any specific provisions in Israe li laws and regulations, or any significant
judicial decisions, with bearing on the use of tr ademarks 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 "technologyIP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 8
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 conflictsbetween 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 of
goodwill.  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.
C. G
EOGRAPHICAL INDICATIONS
7. Is there a significant difference between the ef fective 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.  Conceptually 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 dueexclusively 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 misleadthe public, in particular, 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,' 'imitation,' or the like, however, in accordance with Article 22 of the
TRIPS Agreement, geographical indications for all other products are protected onlyIP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 9
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 withoutexamination 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 oforigin" its validity can only be challenged in its country of origin and not in the Israeli
courts (however 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 examination
proceedings 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.
8. What is the consequence of providing that a misuse of a geographical indication under
sections 21A is an infringement of an appellati on of origin under sections 22 and 23.  Does the
operation 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.
D. P
ATENTS
9. 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 nature" 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 and
susceptible 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".
10. 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 illustrateIP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 10
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.
11. In what circumstances does Israeli law permit use of a patented invention without the
authorization 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 and
upon 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 authorizationshave 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 accordance
with the provisions of Article 31 of the TRIPS Agreement.  Where a compulsory licence has beengranted, 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 favour of the government.
12. Please elaborate on the interpretation in Israeli law of the phrase "not fair under the
circumstances of the case, do not take account of the 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 on
the ground that there was no local manufacture of the patented product.)  In the Matter of CompulsoryLicence Application 24187, Teva v. Ciba-Geigy , Decisions of the Commissioner (1978-1984), Vol. I,
pages 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 or
failure to manufacture the patented product in Israel.  Notably, the latter ground, subsequent to TRIPSimplementation, is no longer a basis for the grant of a compulsory licence.IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 11
E. UNDISCLOSED INFORMATION
13. 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).
F. CONTROL OF ANTI-COMPETITIVE PRACTICES
14. Does Israeli law provide for any specific me asures 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 generalintellectual 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 allegedthat a certain collective rights management organization may be abusing its monopoly position and
should therefore be subject to the oversight of the anti trust commissioner.  That matter is currently
sub judice before the Anti Trust Court.
III. RESPONSES TO QUESTIONS POSED BY 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 legislation afford to foreign works?
See the response to question 1 from Japan below.IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
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IV. RESPONSES TO QUESTIONS POSED BY THE 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 derived from the notified legislation.
Yes.  See section 2A of the Copyright Ordinance 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."
Follow-up question:
Please explain how the amendment to section 2A of the Copyright Ordinance contained
in the Law to Amend Intellectual Property Laws – (Modifications to Suit the Provisions of the
TRIPS Agreement) 5790-1999 (notified in WTO do cument IP/N/1/ISR/C/9) affects the operation
of section 2A and how the resu lting provision should read.
Section 2A now states:  "For purposes of copyri ght, 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, 1911."  The words in object or source code were added to the existing statute in order to leave
no doubt that Article 10.1 of the TRIPS Agreement has been implemented.
2. What is the legal status of the different do cuments notified as forming Israel's copyright
regime?  Are they all legally binding and do re cent 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 cumulative
primary 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 formany years).
Follow-up question:
In light of the statement in the response th at secondary legislation such as Orders are
subject to primary legislation, please confirm that the secondary legislation provisions of the
Copyright (TRIPS Agreement) Order 5760-1999 amend the primary legislation provisions with
respect to treatment afforded to citizens or residents of Israel in the Copyright Ordinance.
The Copyright (TRIPS Agreement) Order, 5760-1999, does not relate to citizens or residents
of Israel, rather it is intended to implement TRI PS obligations with respect to works arising in other
WTO Member states wherein such works would be protected in Israel as if they had been first
published in Israel or as if they had been created by an Israeli citizen or resident.  Similarly, film
works and architectural works which lack the above contacts with Israel will nevertheless be protected
in Israel provided that the film's producer has a regular place of business or residence in a WTOMember State or where the architectural work is situated in a WTO Member State.
3. Please provide recent examples of crimin al penalties for copyright infringement.IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
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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 intellectualproperty 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 counterfeit goods, and other cases are still pending.
Follow-up question:
Please provide some examples of the level of the fines referred to and of convictions
resulting in offenders spending some portion of their sentence in jail, including the length oftime spent in jail.
In the recent criminal case Docket No. 2737199, The State  Of Israel v. Mr. Golan Yehuda,
(Tel Aviv Magistrates Court, 10 April 2000) the defendant was convicted of dealing in pirated films
and sentenced to four months actual imprisonment and an additional ten months suspendedimprisonment sentence.  However after the victim (the copyright owners) recommended to the Court
to treat the accused leniently, the Court converte d the jail time to compulsory community service.
Fines, though relatively low, are regularly awarded in criminal proceedings.
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, distribute
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 an
infringement of a copyright or a related right under the law of the country of importation.  Hence,
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 ba sis, 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, severalIP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
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courts have applied the maximum amount of permitted statutory damages in an effort to fashion a
remedy 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 (this sum was composed of actual damages in the amount ofapproximately $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 andfines 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.
Follow-up question:
Please clarify whether or not the Supreme Court decision, quoted in reply to question 7,
will apply to all sound recordings or only inter partes .  Please inform whether or not the
Copyright Act will be amended accordingly.
Decisions of the Supreme Court become binding precedent in Israeli law and therefore will
have application to sound recordings generally.  Supreme Court case law need not be codified intostatutory law in order to become binding precedent.
8. Can section 5 of the Copyright (TRIPS Agreement) Order be used to reduce the term of
protection below the levels mandated in Article 12 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/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
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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.
Follow-up question:
Please comment on the application of the mandatory language of Article 12 of the
TRIPS Agreement to the provisions of section 5 of the Copyright (TRIPS Agreement) Order.
Section 5 of the Copyright (TR1PS Agreement) Order incorporates the notion of the rule of
the shorter term, as such rule is recognized by Article 7(8) of 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 trademark 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 monetarydamages and permanent injunctions.  In addition, in cases of counterfeiting criminal sanctions are
available. See sections 1, 57, 59, 59A and 60 of the Trademarks Ordinance.
Follow-up question:
Is the protection referred to extended to trademarks used on goods and services "similar
to those in respect of which the trademark is  registered where such use would result in a
likelihood of confusion" in the terms of Arti cle 16.1 of the TRIPS Agreement and, if so, by
which provisions of Israeli law?
Yes.  The protection referred to does exte nd to trademarks used on goods or services
similar to those in respect of which the trademark is registered where such use would result in a
likelihood of confusion.  Where the marks are id entical no showing of likelihood of confusion is
necessary.  See the definition of "infringement" in paragraph 1 of the Trademarks Ordinance.
C. I NDUSTRIAL DESIGNS
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 varyin g interpretation, as a general rule the concept of
"new" refers to a situation wherein the form or the design are entirely new, whereas the concept ofIP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
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"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 the
subsequent application is not new or original in light 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.
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 of
goods in which the design is registered if such is done for the purpose of sale or offering for salearticles 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 rightsto preventing acts of "making, selling or importing" when such acts are undertaken on a commercial
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, takingaccount of the legitimate interests of third parties.  Accordingly, pursuant to section 37 of the Israel
Designs Ordinance the design holder effectively has the exclusive right to authorize any activity
which would conflict with a normal exploitation of the protected design.
Follow-up question:
What is the legal basis in Israeli law for co ncluding that "the right to prevent others
from applying the design" includes "the exclus ive right to authorize the making, selling or
importing of articles" in the terms of Article 26 of the TRIPS Agreement?  What was the reason
for putting the Israeli law in terms other than those used in Article 26?
Section 37 of the Patents and Designs Ordinance [repealed as  to patents and replaced by
the Patents Law, 1967] accords the design holder the exclusive right to authorize the making,
selling or importation of articles bearing the protected design where such is done, without hisconsent, for the purpose of selling, offering for sale or publication.
D. P ATENTS
12. Please explain whether or not in your legislat ion, patent or otherwise, patent rights are
enjoyed without any exclusions.  If exclusions a re 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 7of the Patents Law and include:  (i) methods of therapeutic treatment of the human body;  and, (ii)IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 17
new varieties of plants or animals, except micr o-biological 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, a method for isolating the micro-organi sm 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 your
legislation 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 theTRIPS 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 for
purposes of one of the said acts; ...".
Accordingly, the patentee has the exclusive right to prevent any other person from, inter alia ,
importing and or offering for sale, without the 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 Patent s 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 be
available pursuant to the provisions set forth in Chapter 7 (sections 116 - 130) of the Patents Law.IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
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16. Please explain how your legislation explicitly ensures that a proposed user has made
efforts to obtain authorization from the righ t 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 you define "reasonable period of time".  Please also explain how yourlegislation ensures that the use of a compulsory  licence shall be author ized 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 forobtaining 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 of
the filing of the patent application (section 117.b).  Second, as a general rule prior to thecommencement 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 application
24187, Teva v. Ciba-Geigy , Decisions of the Commissioner (1978-1984), Vol. I, page 5, 6, 24).
17. Please explain how your legislation provide s for the enhanced patent protection of
patents or patent applications pending on 1 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 TRIPS
Agreement, 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.
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 50incorporates the alternative set forth at subparagraph (b) of Article 34.1.
19. With regard to the definition of "exploitatio n" 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.  In
the 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 in
some of the English language translations of the Patent Laws, but the translation could just as easily
be "making" instead of "production".IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
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Follow-up question:
Should the English translation concerned read "production or making"?
The translation should be read as "making".
E. P ROTECTION 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 which
grants 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'strade 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 constitute 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 Piller" 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 CivilProcedure, 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).
Follow-up question:
How many recent examples of imposition of bond requirements by Israeli courts are
there and what are the maximum requirements imposed?
Information of this sort is not readily available, nor are statistics of this sort maintained.
Generally, bond requirements are commensurate with the individual circumstances of the matter in
question.
22. What are the requirements imposed by Isra eli courts for evidence necessary to the
granting of orders to preserve relevant evidence?
Israeli courts are empowered to grant pre-j udgment "Anton Piller" type orders, on an ex parte
basis, for the purpose of obtaining and preserving evidence (and preventing the free circulation ofIP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
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goods 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 Piller 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 Piller case
law has been codified pursuant to sections 16-17 of the Commercial Torts Law.  In addition, the court
may require the moving party to post adequate security in favour 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 Piller Orders arising under the
Commercial Torts Law posting of se curity is obligatory (section 18).
Follow-up question:
What is the recent practice of Israeli courts  in respect of evidentiary burden for Anton
Piller-type orders?
In general such orders will be granted upon a showing of prima facie evidence.
V. RESPONSES TO QUESTIONS POSED BY JAPAN
A. C OPYRIGHT AND RELATED RIGHTS
1. Please explain how the protection is provi ded 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 thenational 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 Ag reement 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 existing
law, 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 Member
state;  or, (ii) the author of the work was a citize n 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 publishedor 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.IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
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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 first
published in a member state.
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 Neighbouring 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, insofar 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 su ch 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 theenactment 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 by Article 10.1 of the TRIPS Agreement.  Are those computer programs protected as
literary works in accordance with Ar ticle 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 the
Berne 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-readab le form.  Please explain how the Law complies
with Article 10.2 of the TRIPS Agreement in this respect.IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 22
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.
B. T RADEMARKS
6. Please explain how legislation of Israel co mplies with Articles 2.1, 16.2 and 16.3 of the
TRIPS Agreement which apply, mutatis mutandis , Article 6 bis 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) and (14) [refusal to register], 24 [opposition
to registration], 39 [cancellation of a registration] and 57, 59, 59A and 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 alia , 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  complies 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 or
spirits 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 indicationsidentifying wines or spirits for wines or spirits not originating in the place indicated by the
geographical 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.IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 23
D. P ATENTS
8. Please explain how legislation of Israel complies 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 of
Article 28.2 have been extant in Chapter 5 of the Patents Law since 1967.  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 asimilar 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 aninvention' - (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 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 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 TRIPS
Agreement 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 commercial 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 toany 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."IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 24
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 judi cial authorities order regarding intellectual
property rights, including injunctions, damages, expenses, destruction or disposal of infringing
goods, materials or implements for their producti on.  Please explain the criteria for and the way
of calculation to decide the amount of damages which judicial authorities order to the person
who infringes intellectual property ri ghts 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 Tr ademarks 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 Piller 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 Piller Order is generally based in common law (theleading 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 Piller 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 to
ensure that if a plaintiff succeeds in a case, all property in the jurisdiction will remain intact
so that the plaintiff would be able to execute the judgment.  The Mareva injunction was firstintroduced 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 theCivil 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 solelyIP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 25
on the application itself and its supporting affidavit.  A decision is granted usually no later
than one or two days from filing of the application;
(3) Attachment Order - Also pursuant to Chapter 28 of the Civil Procedure laws and in
particular Rule 360 et seq.,  in an action for a sum of money or an action for a specific object,
is supported by document or by other prima facie evidence, then the court may grant a
temporary attachment order over the assets in the defendant's possession and also over the
defendant's assets in the possession of any other person, until the judgment is realized.  Such
an order is granted where the court is convinced that if the order is not granted, the execution
of any judgment may be impaired.  An application for an attachment order shall be made in
writing and is usually heard ex parte .  No attachment order may be issued unless the plaintiff
has provided a guarantee at the instructions of  the court, usually an undertaking and a third
party security, to compensate the defendant for any damage caused by the order;
(4) Account of Profits - A plaintiff may also apply to the Court for an order of an account of
profits (see, section 223 et seq.  of the Civil Procedure Rules).  Once the order is granted, the
Defendant will be required to report on all sales of the infringing items, consideration
received, expenses incurred in manufacturing and marketing.  A chartered public accountant
will usually certify this report;
(5) Stay of Exit - Israeli civil procedure, (at sections 376 et seq.  of the Rules of Civil
Procedure) provides for the possibility to request a stay of exit from 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 goods
pursuant 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, newIP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 26
section 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;
(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 at
putting the injured party, namely, the owner of the right, in the position he would have been
had the infringement not occurred (see, for example, section 183 of the Patents Law;section 37(b)(2) of the Patent and Designs Ordinance;  section 59 of the Trademarks
Ordinance;  section 6 of the Copyright Law and section 3A of the Copyright Ordinance;
section 5 of the Performers' and Broadcasters' Rights Law;  and, chapter 3 of the Commercial
Torts Law.  It should be noted that the aforementioned sections also provide a statutory basis
for a variety of non-monetary final and interim remedies, such as those detailed 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.  See
also 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
favour 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 tradem ark of pirated copyright goods is prescribed, as
stipulated in Article 51 of the TRIPS Agreement.   Please explain types of intellectual property
rights about which the suspension can be ma de upon an application by a right holder.IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 27
 
 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 involveinfringements of copyrights or trademarks.  Pursuant to the above noted statute sections, the Director
of Customs has statutory authority to delay the release of goods which are prima facie infringing
either 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 , contains a
false trade description or which may otherwise cause consumer deception in any material way.
 
The Customs Authorities, in reliance upon section 204 of the Customs Ordinance and
section 35 of the Consumer Protection Law, exercise their authority over infringing goods which are
in transit through Israel to a destination outside of Israel and to exports from Israel.  Nevertheless, it
should be noted that a footnote to Article 51 of the TRIPS Agreement provides that there is no
obligation to apply customs suspension of release procedures to imports of goods put on the market inanother country by or with the consent of the right holder, or to goods in transit.
12. Please explain the kind and amounts of crim inal penalties including imprisonment and
fines regarding intellectual property rights.  In particular, are the crimes prosecuted only when
the injured party has made a formal accusation?  Please also explain whether penalties areconsistent 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 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 (approximatelyUS $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)IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 28
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 yearimprisonment 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 raise
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.  Inaddition, 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 ortrademark, 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.
VI. RESPONSE TO QUESTION POSED BY SWITZERLAND
A. P
ATENTS
1. Please verify that Israel's Pharmacists' Act Amendments of 1999 and its implementing
regulations observe the obligation deriving from Article 27.1 of the TRIPS Agreement that
patents for pharmaceutical products or processes must be available and patent rights, including
the exclusive right of importation according to  Article 28 of the TRIPS Agreement, enjoyable
without discrimination as to this particular field of technology.
Israel patent law maintains or exceeds the obligations deriving from Articles 27.1 and 28 of
the TRIPS Agreement.  Patents are available for inventions in any field of technology (see section 3"Patentable Invention" of the Patents Law).  The right to control importation of any patented item is
included amongst the patentee's exclusive rights (see section 49 "Rights of Patentee" of the Patents
Law and section 1 of the Patents Law, definition of "exploitation of  an invention").  The Pharmacists'
Act and its implementing regulations relate only to health and safety issues and are neutral with
respect to patent rights.  Accordingly, they have no impact on patent rights, discriminatory orotherwise. Patent rights, including the right to prevent importation without consent, are available
under Israel Patent Law for pharmaceutical inventions as well as for all other patented inventions, be
they products or processes, and are enjoyable wit hout discrimination as to any particular field of
technology.IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 29
VII. RESPONSES TO QUESTIONS POSED BY THE UNITED STATES
A. GENERAL
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 ina 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 favorable
treatment 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 and
any such rights are extended to nationals of all WTO Members.  Nevertheless, it should be noted thatIsrael 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 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.
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 enforcement
of patent rights and will recognize priority rights based on prior patent applications duly filed in aWTO Member State.  Additionally MFN is maintained  insofar 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 ofIsraeli nationals and nationals of other WTO Member States.IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 30
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. COPYRIGHT 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 substantia l part thereof in any material form whatsoever,
…"  Article 19(1) provides that copyright subsists in "records, perforated rolls, and other
contrivances by means of which sound may be mechanically reproduced, in like manner as if
such contrivances were musical works, ..."  Plea se confirm that these provisions ensure that
producers of phonograms enjoy the right to au thorize 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 (IP/N/1/ISR/C/2) and subsequent sections, the
word "cassette" is crossed out and "recordable me dia" is inserted.  Does this indicate that an
amendment has 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 thecorrection was made in handwriting.
4. Section 6(2) of the Copyright (TRIPS Agreement) 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 obj ect that is the principal object for hire."  The
quoted language is nearly identical with that  in Article 11 of the TRIPS Agreement which is
intended to except from the rental right for co mputer 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 Intellectual 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 commercialIP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 31
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 resp ect 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) in that 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 Trademarks 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 that authorize such a limitations on remedies.
Israeli law provides owners of well-known marks 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 MarksOrdinance.
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 limita tion 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 correctphrase 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."
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 theTRIPS Agreement.  Is there a definition of "a lcoholic 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 itselfprovide 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 forIP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 32
the purpose of maintaining the registration."  It appears 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 requirement
and indeed.  Trademark licence recordal obligations promotes several important public interests suchas:  (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 marks 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 ofOrigin Law does not contain any provisions aimed at ensuring that a newly applied for
geographical indication should be refused if it is  identical or 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 of
the Appellations Law, senior good faith trademark rights, whether acquired through use orregistration, 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 the
same description.  Conversely, a junior trademark would not be entitled to the safe harbour provisionof 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 and 6B of the Trademarks Ordinance).
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 indication s and appellations of origin are dealt with
under different chapters of the Israeli law, an argument 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 interpreted in that manner, a trademark owner
would not be able to assert its rights effectivel y against an appellation of origin.  Does the law
permit the owner of a trademark to assert its righ ts against an appellation of origin and, if so,
how?IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 33
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 makes
reference 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 tothe Courts to determine whether that term also includes "appellations of origin" for purposes of
section 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 that the owner of a registered trademark
shall have the exclusive right to prevent all th ird 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 exclusiveuse 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 of
a 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 alsothat 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 by
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).IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 34
E. PATENTS
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 pursuant 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 profession al 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 (4 June 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 the 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, the 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.
16. Please describe in detail the way in wh ich 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.  SeeIP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 35
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).
Follow-up question:
In response to question 16, in which we asked Israel to describe in detail how it protects
undisclosed test or other data submitted for marketing approval, Israel responded that such
data is "held in confidence and [is] not open to public inspection".  We would appreciate some
additional detail about what is meant by the phrase "held in confidence and not open to public
inspection".  Does this mean th at such data is protected "against unfair commercial use" and
"against disclosure" (as recognized by Article 39.3) ?  Also, does this mean that such data cannot
be relied upon by secondary applicants seeking marketing approval?  If not, please explain in
detail then what is meant by "held in confidence" and "not open to public inspection" in this
circumstance.
Confidential test data submitted to a regulatory agency is protected against disclosure and unfair
commercial use.  The confidential information is not disclosed or made available to third parties,
including third parties with potential commercial interests, nor is it available to the public.
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. ENFORCEMENT – GENERAL OBLIGATIONS3
18. Please describe how the Government of Israel meets the requirements of Article 41 of
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 ac tion against infringement of intellectual property
rights as required 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 andadequate remedies are available with respect to intellectual property rights;  (2) Procedures are fair
and 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 appealedby 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
decisions reviewed by the appellate bodies you have identified?  (Article 41 of the TRIPS
Agreement)
                                                     
3 For each of the responses provided to the questions on enforcement, please cite to all relevant statutes,
regulations or other legal authority under Israel's law.IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 36
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 and
section 188(b) of the Patents Law, respectively).  The court of first instance also has jurisdiction overapplications 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
(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 theSupreme Court.
20. Please identify any administrative agenci es that have jurisdic tion 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 beconnected with administrative agencies.
H. E
NFORCEMENT - 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 proceedings have been initiated against them.  Also,
describe the type of information provided in the notice.  (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 ofsuch 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) case s, 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 theCourt (see sections 472 and 474 of the Rules of Civil Procedure).IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 37
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 administ rative 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.
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 pr operty infringement cases are handled in an
expeditious manner and what provisions are available to prevent deliberate delays by the
parties to a proceeding?  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 or
to 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 Piller Order, injunctions, etc.) the mattersheard 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 disclosed 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 damageshave 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 mayIP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 38
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 case
law with respect to other IPRs.  Additional search and seizure authority is set forth at chapter 4 of the
Criminal Procedures Law.
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 ha ve the authority to issue injunctions (or
equivalent measures) to order a party to desist from an infringement and to prevent infringinggoods from entering the channels of commerce? Pl ease 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, theCustoms 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 of
infringing 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 es tablish a party's right to each of the types of
relief identified and what  are the conditions imposed on obtaining such 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 same
day 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, butcould 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 prov ided 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).IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 39
33. Please explain whether judicial  and administrative officials have the authority to order a
party found to be infringing to pay the right holder 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 infr inging goods) that judicial and administrative
officials may impose in civil judicial and administrative IP cases, the circumstances under whichthose remedies will be 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 and
other 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 thefollowing 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 donot 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).
I. E
NFORCEMENT - PROVISIONAL MEASURES
37. Please identify the provisional measures available under the laws of Israel to prevent an
infringement of any intellectual property righ t 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:IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 40
(a) any requirements to establish "ir reparable harm" to the right holder.
(Article 50.2 of the TRIPS Agreement);
(b) factors considered by judicial and ad ministrative 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 Piller" 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 orhidden;  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 inquestion and that their right is being infrin ged?  (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 be
the 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
the TRIPS Agreement).
Requirements for sureties or bonds would arise pursuant to rules of civil procedure with
respect to pre judgment remedies such as the "Anton Piller" 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 inauditaaltera 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 Japan
above.
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.IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 41
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 req uired from applicants to identify goods
which are the subject of provisional measures.  (Article 50.5 of the TRIPS Agreement).
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 Piller" 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 50of 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 Rulesof Civil Procedure;  and, response to quest ion 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 reaso nable 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 seven days from the day the preliminary remedy is ordered;  or, (ii)
the cause of action is dismissed, struck out, ceased or the 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 Piller  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 ofprovisional 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.
J. E
NFORCEMENT – SPECIAL REQUIREMENTS RELATED TO BORDER MEASURES
48. Please identify the competent authority in Is rael authorized to accept applications for a
request to suspend release of suspected infringi ng 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.IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 42
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 enforc ement 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 customs
authority 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 protectedby 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 infringing
goods 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 attorneywith 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 courtsIP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 43
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 the
TRIPS 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 whichare 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 acourt order the Customs Authority will make efforts to notify the Customs Authorities in the country
of destination as to the arrival of potentially infringing materials.  In addition, we note that the
provision in Article 51 of the TRIPS Agreement which specifies that Members may provide
corresponding 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 they themselves may constitute
prima facie evidence.
52. Please verify that the competent authorit ies 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 appl icant/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.IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 44
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 de tained by customs authorities.   (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).
57. Please explain whether the competent auth orities 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  imports are excluded from the border measures under
Israel's law.  If so, what constitutes a de minimis  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).
K. E
NFORCEMENT - CRIMINAL PROCEDURES
60. 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 essentialaspect 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 upto 19,300 New Shekels (approximately US $4,800.00, see section 61 of the Penal Law) 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 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 (includingIP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 45
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 use
of 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 thesame 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.
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 anygoods, wrapping, packing or advertising material, or blocks, dies or other apparatus for printing the
mark 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.
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 in fringing 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 circumstances 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, integr ated-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 (including settlement);  and the amount of damages awarded.
Statistical information of the sort requested is not maintained.IP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 46
63.  Please provide statistical information rel ated to criminal enforcement in the area of
copyright piracy and trademark infringement fo r 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 actu ally 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 intellectualproperty 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 endedin convictions with six to 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 enforc ement, 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 property 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 suppliers who 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 the audiovisual 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 they patents, copyrights orother protected rights.  In the event that the IPR belongs to a third party, the
declaration must specify how the bidder obtained the right to use the said rights;  andIP/Q/ISR/1, IP/Q2/ISR/1,
IP/Q3/ISR/1, IP/Q4/ISR/1
Page 47
- 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.
Follow-up question:
The U.S. is aware of reports of high levels of copyright piracy in Israel, particularly in
the area of sound recordings.  These reports have remained consistent for several years, and the
U.S. is not aware of any reports of a significant decrease in piracy rates.  Indeed, as recently as
May 2000, the International Federation of the Phonographic Industry reported administrative
difficulties, judicial delays and unwarranted case dismissals, particularly against pirateproduction facilities, that significantly hampered  their ability to protect their rights.  How does
Israel reconcile these persistent reports of widespread piracy with its assertion that the general
obligations of Articles 41 and 61 of the TRIPS Agreement, including those to permit effective
action and to deter further infringements, are met by the Israeli enforcement regime?
While we appreciate Israel's current effort s in the area of IP enforcement, including
general education and legitimisation of governmental use of software, we would like to know
whether Israel intends to take step s specifically designed to curt ail optical media piracy in the
very near term.  We are particularly interes ted in Israel's current thinking about measures
whose efficiency in this area has been demonstr ated in other countries, such as mandating the
use of Source Identifier Codes, domestic production licences and the tracking of raw materials.
As further described in the responses to the US's initial written questions, enforcement of
intellectual property rights is a high priority in Israel.  To achieve that goal, over the last year
significant human and financial resources have been invested in the improvement of criminalenforcement of IPRs in general and copyright in particular.  Moreover, rights holders (and in
particular the phonographic industries) have ready access to police, prosecutors and policy makers all
of whom work closely and regularly with rights holders to ensure enforcement of intellectual property
rights. In particular, the police and States' Attorneys Office have set up special units dedicated to
enforcement of intellectual property rights.  Over the last year the police have been intensively
investigating alleged incidents of copyright piracy by store owners, wholesalers and manufacturers.
With regard to sound recordings, there were many seizures, investigations and indictments with some
ending in convictions.  Indeed, seizures are being made on a scale which is often proving difficult for
rights holders to keep up with in terms of being ab le to confirm, for evidentiary purposes, that seized
items are in fact infringing.  Enforcement of rights is a high priority and the relevant authorities in
Israel are open to exploration of new means for further enhancing enforcement.
We are not aware of any judicial delays or unwarranted case dismissals in the enforcement of
copyright.  If detailed information concerning such incidents is provided we will look into such
matters.  As for administrative difficulties, the reference may be to the predictable difficulties
encountered in establishing a major new police unit, to included expertise and technology appropriate
to the special needs of intellectual rights enforcement.
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