Passing Off: Unjust Enrichment denied by court. Reason: the alleged infringed product was not innovative

The Plaintiff claimed the defendant copied its bath products and argued the establishment of the wrongs passing off and unjust enrichment. The Israeli district court rejected the claims explaining that for Passing off the two required elements – 1. Proof of reputation of the products and 2. Reasonable risk for deception of the public, were not established. First the plaintiff failed to prove the product acquired reputation with end users. It was held that acquiring reputation among suppliers is irrelevant. Second it was held that the public was not mislead by the defendant's products as the defendant acted to distinct its product from that of the plaintiff's by using a different logo, and different rapping box.
As for unjust enrichment, it was held that the first element i.e. Enrichment was established as the defendant entered a new market where the plaintiff had no business in, with no need to invest in the product's design. The second element, i.e. enrichment on the expense of the plaintiff- was established as well, as the defendant practically made a product which is identical to the one produced by the plaintiff. However the third element that is needed for the establishment of unjust enrichment was not found according to the court. Proving the existence of this element requires evidence that the product is innovative, or that large amount of resources and time was invested in its development. In this case there was no such evidence. The product was held to be simple of no special features making it difficult to copy. Hence, the third element was not established.
The court therefore rejected the plaintiff's claim as a whole.



Ozgum Ltd. Vs Treplex Pal Yam Ltd

Yaara Shoshani,
Appelfeld Zer Fisher