Can the Ministry of Culture Use the Brand “Book Week”?

By Gideon Koren Gideon Koren

Globes - Israel's Business Front

The struggle between the Book Publishers Association of Israel and the Ministry of Culture regarding "Hebrew Book Week" is intensifying. Between the two bodies a financial dispute has developed, and in its wake the Ministry of Culture announced that it would produce the Reading Month and Book Week events, itself. The Book Publishers Association of Israel was not incited by the Ministry's threats, and claimed that "Hebrew Book Week" is its brand, legally protected as a registered trademark, and therefore the Ministry of Culture cannot make use of it.

This is not the first time there has been a clash between a registered trademark and an expression found in common public usage. It would seem that the use of the brand "Hebrew Book Week", which has been claimed to be a trademark registered to the publishers' cooperative, is owned exclusively by the cooperative. At the same time, one cannot ignore the fact that the general public has recognized and widely used the term "Book Week" (both with and without the word "Hebrew") for decades. Additionally, the term "Book Week" describes an activity that takes place once a year all over Israel – a week of exhibition stands for the sale of books.

The purpose of a trademark is to create two central protections: one – protection of the company's business enterprises; and the second – protection of the consumer public by creation of certainty regarding products or services that they acquire.

The business benefits enjoyed by a registered trademark (or a mark that is well known to the public) incentivize every business to register its own trademark. The law can provide the owner of the registered trademark a monopoly over the use of the registered trademark in the field in which it was registered. Competitors of the trademarks' owner will be prevented from making use of the registered trademark, in the framework of their business activity, and will thus be unable to take advantage of the reputation inherent in the registered trademark for their own good and at the expense of the trademark owner.

The power of the protection to which a registered trademark owner is entitled is derived from its character. The more arbitrary the trademark (for example, the trademark "Apple" in computing; "Time" in cigarettes; "Golf" in automobiles, etc.), the stronger the protection.

Contrarily, the more the trademark describes the product being sold or the business activity (for example, "Avazi" in meat restaurants [trans. note: similar to "goosey", as in the animal]; "zer4u" in flowers [trans. note: similar to "bouquet4u"]; "Pizza Meter" in pizzerias), the protection afforded by the trademark is liable to be lesser.

In situations in which the general public makes use of a particular trademark, it can be seen as a mark in the general public domain and to this was the intention – one can assume – of the Ministry of Culture. The courts have held on more than one occasion that in situations such as these it may be appropriate to prefer the value of general public use over the specific economic interest of the business to make exclusive use of the trademark, and therefore it may be appropriate to permit general use of the trademark even by external forces.

Contrarily, before permitting general use of a trademark, the Courts require assurance that this is not the attempt of a particular business to benefit from a competitor's reputation, or unfair commercial competition, and also that there is no suspicion of misleading consumers. Thus will be preserved the appropriate balance between protection of the economic value of a trademark given to a business privately, and the protection of the general public.

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