Attorney Gil Nadel, Gilad Paz
The District Court of Tel Aviv has recently accepted the request of a wine manufacturer to prohibit the return import of his products to Israel by another party.
The manufacturer claimed that he personally sold the products to the exporter, so that they may be distributed abroad, but it became clear that the exporter was planning on returning those products to Israel. The manufacturer claimed that returning the products to Israel will harm him and requested the court to prevent this from happening, and his request was accepted.
At the moment this is a temporary assistance granted in the presence of one party, but the final ruling on the case will be given later after the other party will be heard.
The case and claims made by the parties:
A beverage manufacturer claimed to have sold 5,600 bottles of wine to an exporter with the intention of that same exporter distributing the beverages in Hong Kong and China.
At a certain point, it was brought to the manufacturer's attention that the exporter meant to return the bottles back to Israel and market them there.
The manufacturer claimed that he is the exclusive distributor of those beverages in Israel and the return of those bottles that had already been exported to the Far East, without knowing if they were stored in suitable conditions, is liable to harm him. The manufacturer further claimed that if the exporter will sell the bottles at a cheaper price in Israel this will harm the manufacturer's reputation.
The manufacturer submitted a request for a temporary injunction in the presence of one party.
The court ruling on the temporary aid:
The court weighed the damage that may be caused to the exporter as a result of the injunction against the damage that is liable to be caused to the manufacturer if the injunction is not granted.
The court determined that since the injunction will spare the exporter the expense of returning the merchandise to Israel and the manufacturer claims this would harm his good reputation, the balance shows that the request should be accepted.
The court stipulated the injunction on the deposit of a security payment of NIS 100,000 on the part of the manufacturer to cover the damages inflicted upon the exporter if it becomes apparent that the injunction was granted unnecessarily.
After the exporter will submit his case, the court will continue its inquiry into the case.
[Motion (Tel Aviv District Court) 18938-12-12 Chateau Golan Ltd. vs. Doron Michlin, Judge Dr. Mihal Agmon-Gonen, decision of December 10, 2012. Party representatives were not noted].
Notes:
In this case, the court chose to prevent, in the intermediate stage, the parallel import of an original product, due to the manufacturer's claim that this import will cause him damage.
It should be noted that the courts do not usually prevent the parallel import of an original product, unless significant damage to the manufacturer's rights can be proven.
For example, in November 2011, the Central District Court deferred the lawsuit of Birman Wood and Metal Fixings to prevent the parallel import of drawers manufactured by the German manufacturer "Hatish" by its competitor, Nissim Farjun. In this case, the court determined that since the reputation in this case lies with the German manufacturer and not the importer, the importer has no right to make this demand.
[Civil suit (Central District Court) 22009-10-11 Birman Wood and Metal Fixings Ltd. vs. Nissim Farjun (2000) Ltd. et al].
This last case differs from the present case since in the present case the manufacturer with whom the reputation lies is the prosecutor, and not his importer.
In another case, the court declined to grant a temporary injunction as requested by American Eagle against Hamashbir Latzarhan. Hamashbir wished to import American Eagle products through parallel import. The court determined that in this case it is not sufficient to hear the exclusive importer's testimony alone in order to establish the claim that the imported merchandise does in fact constitute a breach of the trademark and therefore, the temporary aid cannot be granted.
[Civil suit (District Court of Tel Aviv) 44791-10-11 American Eagle et al. vs. Hamashbir Ltd. et al.].
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