No likelihood of confusion between premium tea products, says court

Israel
In Ceremonie Tea Ltd v W Wissotzky & Partners Tea Company (Israel) (1949) Ltd (Case 10373/09, November 19 2009), the Central District Court has refused to grant an interim injunction preventing tea manufacturer W Wissotzky & Partners Tea Company (Israel) (1949) Ltd from marketing premium tea products in packaging similar to that of Ceremonie Tea Ltd.
 
Ceremonie manufactures and distributes premium tea products under the mark CEREMONIE. Ceremonie claimed that its products:
  • were sold in specially designed packaging;
  • were distinct from other tea products in Israel; and
  • had acquired a reputation in that country.
Ceremonie alleged that its market share was 0.6% of the general tea market, but 60% of the premium tea market. Ceremonie's product consists of transparent tea bags marketed in black packaging, with a colour drawing of tea leaves forming a circle on the front of the product. Larger packets of tea are sold in retail chains, while individual packets are served in cafés and restaurants.
 
Wissotzky, which controls the general tea market in Israel (with a 78% market share), launched two premium tea products consisting of transparent tea bags in black packaging with a colour drawing of a tea tree on the front. Larger packets are retailed under the name The Leaves Collection, while individual tea bags are served under the name Gold Leaf in cafés and restaurants. The packaging of Wissotzky's product was designed by the same designer who created Ceremonie's packaging. Ceremonie sued Wissotzky for passing off, among other things.  
  
The court held that in order to determine whether Ceremonie had acquired goodwill in its product, the relevant market was not the general tea market, but the niche market of premium tea, in which Ceremonie claimed to have a 60% share.
 
The court further held that the use of the colour black on packaging was not unique to Ceremonie. Nevertheless, the court found that Ceremonie had acquired goodwill in its product as a result of its exclusive marketing method, which focused on providing consumers with a unique tea-drinking experience in cafés and restaurants, rather than on media advertising.
 
However, the court concluded that there was no reasonable likelihood of confusion among the public. Comparing the products of the parties, the court found that, on the whole, the differences outweighed the similarities. The court noted that although the products both consisted of transparent teabags sold in black packaging with a colour image on the front, the use of the colour black was customary for tea products, as was the use of additional colours for different blends. Moreover, the court pointed out that Wissotzky's product bore its famous 'W' symbol.
 
The court also listed the following differences between the goods:  
  • the products were different sizes;
  • Ceremonie's product bore a coloured circle on the front, while Wissotzky's product bore the image of a tea tree;
  • the products were opened in different ways (in particular, Wissotzky's retail product imitated a packet of cigarettes, and the individual packets ressembled matchboxes); and
  • the individual packets were served in different ways (Wissotzky's product was served in an oblong box, while Ceremonie's was served on a tray).
David Gilat and Sonia Shnyder, Gilat Bareket & Co, Reinhold Cohn Group, Tel Aviv

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