Two Reichman University students recently became the first Israelis to compete at the prestigious Oxford University International Intellectual Property Law moot arguing competition.

This year, the competitors debated what should happen if you find that a special butterfly-shaped cake has a low-cost copycat version at the local supermarket?

Copyright, trademark, and other design issues can be implicated and were hotly debated at the competition.

The grand final was judged by Lord Kitchin of the UK High Court of Justice and Lord Justices Arnold and Birss of the Court of Appeal of England and Wales.

Reichman law students Aseel Kasab and Shira Shturman were selected to take part and made it past the initial written phase of the competition.

The moot event took place between March 17 and 19 involving 30 teams competing from around the world.

Kasab is a 25-year-old in the second year of her second degree at Reichman after obtaining a first degree in law and business from Warwick University in England.

She was inspired to study intellectual property law by a lecturer at Warwick, but also by her “family who are authors and write books…there is a lack of protection for intellectual property,” for authors.

In addition, she is excited by the dynamic relationship between humans, ideas and sometimes by ideas having independent value to stand alone beyond how one or another group of humans may use them.

The law student said that she was thrilled to go to Oxford for the competition, an opportunity to return to England, and that the team had gotten past the first round.

Some schools have almost two decades of experience in the competition to hold over the Riechman students, but Kasab said they would make even more progress in the future now that the team got more of a lay of the land.

In a comedic twist, before other Oxford competition participants got to sorting out Kasab’s Israeli-Arab identity, she first had to convince them that their team was not German since they were coming from a university called Reichman.

She said that she was selected by Reichman for her capabilities, rather than her ethnicity and that it was just a “happy coincidence that she was an Arab-Israeli female,” in terms of showcasing diversity and breaking stereotypes.

Shturman said her motivation to participate was “about the future, the future of technology and all startups around the world are built on intellectual property…so you need to protect the intellectual property of the startups.”

She said she was also “very attracted to the idea that it [intellectual property law] is causing developments in constitutional and international law versus, for example, criminal law, which is very localized and doesn’t change,” as much, noting she wanted to be “in the most innovative place.”

In addition, she said it was a historic achievement for them and for Reichman to be the first Israelis in the competition and who made it past the eight-month-long tough written round as well as being one of the only teams solely composed of women.

Finally, she said it was very special to be with such preeminent judges, scholars and other talented students.

Ariel Dubinsky, the owner of Ariel Dubinsky and co. coached the Israeli team along with Dr. Aviv Gaon of the Reichman University.

Dubinsky said, “The students demonstrated their command of international copyright law, designs, and geographical indication. Having the opportunity to witness the superb teamwork, dedication, and passion of these outstanding mooters throughout the entire process has been a true privilege and a very interesting learning experience.”

Establishing the Facts

In August 2016, the Israeli Customs in Haifa port seized a shipment of inflatable devices bearing animated figures of Disney. Subsequently, Disney filed a claim in Tel-Aviv District Court against New Food (the importing company) claiming copyright and trademark infringements.

Disney decided to add the State of Israel as a defendant since the Haifa port Customs unit that held the allegedly infringing goods is an Israeli government entity. Adding the state as a defendant, albeit a technical one, would allow, according to the Israeli territorial jurisdiction regulations, the Tel Aviv District Court to have jurisdiction. That way, Disney thought, they would be able to hold the trial at Tel-Aviv, which is more convenient for their corporate lawyers who will save the 65-mile drive to Haifa. This is not an uncommon tactic. However, in relying on the civil procedure regulations, Disney did not provide any rationale for the decision to file the claim in Tel Aviv other than relying on the grounds that adding Customs to the claim allows them to file the claim throughout Israel.

In that case, the defendant tackled Disney’s procedural act and petitioned to have the case transferred to the Haifa District Court. The Defendant argued that since that the Customs seizure was in Haifa, the Defendant place of business is in Haifa, and the dispute has no substantial connection to Tel-Aviv, holding the trial in Tel Aviv creates an unnecessary burden for the parties. Disney, on the other hand, argued that filing the claim in Tel Aviv is according to the civil procedure regulations since one of the parties is, as stated earlier, the State of Israel, an action can be brought against the State at any court in the country.

Tel-Aviv District Court Decision

The Court rejected Disney’s claim and transferred the case to Haifa. In his decision, Judge Maor stated that ‘the dispute is between the Petitioners and the Plaintiff. The State is not a necessary and not a substantial party to the disagreements between them, but merely a “technical” one since it is holding the allegedly infringing goods…’. The judge ruled the dispute’s connection to Haifa greatly outweigh its connections to Tel Aviv, stating that we cannot set aside the facts that in all ways lead to Haifa – the Customs unit is in Haifa, the business of the Defendant is in Haifa, and the disputed goods is in Haifa. Likewise, State officials and witnesses that might be needed for the trial also reside in Haifa. In fact, the Court held ‘save for the general and vague argument that action can be brought against the State at any Court in the country, Disney has no real argument.’

Judge Maor concluded his decision reminding us that sometimes we should be willing to be attentive to the needs of others, rhetorically asking, ‘For what reason are we to trouble everyone to the big city? The Plaintiff – who is a foreign company domiciled in the US might have the answers, but if any such exists it did not share them with us”. The Court closed his decision with the words of Disney’s most prominent representatives, Winnie the Pooh: “A little consideration, a little thought for others, makes all the difference.” I could not agree more.

The case involved a lawsuit filed in Tel Aviv District Court by Avi Lan (the owner of the page) against Facebook. At issue was the current affairs page that focused on news from the internet, culture and technology. The Plaintiff alleged that Facebook misused its monopoly power by shutting down the page without any prior notice and by thus violating consumer protection acts as well as basic human rights acts such as freedom of speech. The Plaintiff also requested damages for its monetary loses during the time the page was shut down.

Facebook alleged that the owners of the page had blatantly violated Facebook Terms of use by selling camouflaged advertisement to clients. Facebook asserted that they use their lawful power to shut down pages that infringes Facebook’s rights.

The main issue of the cases revolved over the question whether the Plaintiff’s acts can be interpreted as material breach of the contact (i.e., Facebooks’ terms of use) electronically signed between the parties.

The Plaintiff has alleged that he did not act in manner that caused a material breach of the contract agreed to by the parties. The Plaintiff admitted that they sold camouflaged advertisement, but asserted that this was made in order to sponsor their activity and that they did not gain any substantial funds from these sales. The Plaintiff also alleged that the shutdown was made without any prior notice and as a result caused grave damages to the Plaintiff.

In a precedential decision the Tel Aviv District Court’s Judge Rahamim Cohen accepted the major relief sought and ordered the restoration of the page. Cohen, however, denied any compensation to the owners of the page for damages suffered while the page was shut down. The Court did hold that the Plaintiff breached the terms of use of Facebook, but this should not be regarded as a material breach of the contract.

The Court held that the section that allows Facebook to shut down pages at its own will should be interpreted to first require Facebook to notify the party engaging in breach. In the view of the Court, only after the party notified refuses to comply with the demands set forth by Facebook could Facebook cthen act to shut the Facebook page.

The Court ordered Facebook to restore the page by December 17, 2017, and to pay the Plaintiff’s attorneys fees and costs in the amount of NIS 250,000 (approximately US $80,000).

In my view, the decision of the District Court will be overturned in the Supreme Court as it makes no sense that such a blatant infringement of Fakebook’s terms of use would not allow Facebook to act without first requiring a cease and desist letter prior to a page being shut down.

The message from this decision to those in violation of Facebook terms of use: “don’t worry, in case you infringe our rights, we will first warn you and only if you do not comply, shall we shut down your pages.” In my point of view, that message does not make any sense and will ultimately be overturned on appeal.

What happens when two television reality show producers – one Dutch, one Israeli – meet in real life? Will they abide by the genre codes of conduct they themselves developed?

This question might be answered by the court in , a precedence-setting law suit in the amount of 3M New Israeli Sheqels (about a meager USD 800,000), which was filed by “Endomel”, a Dutch international television production and distribution company, in Israel, last December against Israel’s Channel 10 and the Israeli production company, “Abbot Reif Hameiri”, which co-produced a reality show titled “24/7: The Next Generation”.

“Endemol” claims that Channel 10 copied elements of the worldwide reality TV program “Big Brother” in the locally broadcast show “24/7″ that aired on Israel’s channel 10 last summer. Endomel petitioned for an order to prevent the production, transmission and distribution of “24/7” by channel 10, in addition to a monetary compensation of $1 million.

According to the statement of claim, “…watching The Next Generation leaves an obvious impression of conscious and blatant lifting of the Big Brother format – not to mention a deliberate and wrongful attempt on the part of the defendants to unlawfully rip-off Big Brother’s identity.”

In response, channel 10 and “Abbot Reif Hameiri” claimed in their defense that the program “Big Brother” is not original at all, and noted that there were already many earlier similar programs , most of which were broadcast abroad. Furthermore, they argued that “Endemol”’s claims would prevent fair competition in reality-show productions. Accordingly, channel 10 and “Abbot Reif Hameiri” asked the court to dismiss the claim outright.

The Defendants cite the program “Real World” aired on the MTV television network (broadcast worldwide for 26 seasons, as a similar production format where identical ideas have been implemented. “Real World” shows the lives of about 10 people who live in a condo for several months, filmed by multiple cameras 24 hours a day. “Real World” was produced before “Big Brother”, therefore, defendants contend “Endomel” lacks any right in the disputed TV format, and its law suit must be dismissed Channel 10 and “Abbot Reif Hameiri” further contend that “24/7” is a new creation of their own with strict adherence to all legal directives, including intellectual property laws. Among other things, they contend that, unlike “Big Brother”, the central theme of “24/7” is love and singles searching for love.

This lawsuit could set a precedent in Israeli copyright laws concerning television formats and could reveal behind-the-scenes industry secrets. The Israeli Copyright Law 2007 does not provide copyright protection for an idea, but only its expression. As for TV formats, Israeli Courts have yet to regulate this issue and have not set a binding precedent in this matter.

The issue was examined by Israeli courts only once, in a lawsuit filed by the Israel Broadcasting Authority (IBA) against Rafi Ginat (the producer, editor and host of the show), after Mr. Ginat moved his show “Kolbotech,”, a highly-rated, long-running consumer awareness program, to Channel 2, an Israeli commercial channel. IBA claimed that the matter involved replication of a television format they own. The court, however, denied their claim, stating that the format actually belongs to a British company and, thus, IBA is not the owner of the rights therein.

Even though the court has yet to decide on the issue, the world of business, which has a distaste for uncertainty, has decided long ago: copyrights to reality show formats like “Big Brother” and “A Star Is Born” (a reality television singing competition, now beginning its 10th season, similar to “American Idol”) are sold to broadcasting companies in dozens of countries for considerable sums of money.

In reality, titleholders of this television format have succeeded in developing a formula that has been effective in convincing potential buyers that the format is protected by copyright, even though this issue is not so cut-and-dried. An article published by Bournemouth University researchers in the UK reveals that the package of a television format for sale consists of a file wrapper that contains the various program components in a “magic formula,” which reads like the “bible” of production and which changes hands under strict confidentiality and licensing agreements.

Among others, the instructions of this format may include how to cast the different contenders and how to encourage audience participation, etc. The whole scene is supervised by “hovering producers”, who ensure that the program licensees in their respective countries do not diverge from format directives.

These titleholders also like to protect their logos by trademark registrations and develop a respectable merchandising industry. Another strategy is to take an aggressive stance by threatening every little production company suspected of copying with legal action. The combination of these successful marketing tools has created a kind of crackling cellophane packaging that has managed to convince television channel managers around the world that what is before them is a product you have to pay for. But now this entire market could be shaken.

In order to prove their claim, the producers of “Big Brother” will have to reveal, for the first time, before the Israeli court the secret scroll of directives that reveals the magic formula by which the show operates around the world. The court will then have to rule whether this formula is, indeed, entitled to copyright protection and whether it was, indeed, infringed by the “24/7” production team.

Under Israeli law, a plaintiff is not required to prove copying the complete work of art, but rather a fundamental and substantial part thereof. In order to find out what is a fundamental and substantial part of the world’s currently most successful television format, Endemol will have to expose many of their own internal details that are currently maintained in strict secrecy. The reward for winning this lawsuit will likely exceed the traditional fifteen minutes of fame and a million New Israeli Shekels (about USD 250,000).