No love lost between Love Parades

In Musica Plus Ltd v Love Parade Berlin GmbH (June 4 2007), the Israel Trademarks and Patents Tribunal (ITPT) has held that Musica Plus Ltd has superior rights to Love Parade Berlin GmbH (LPB) in a mark containing the words 'love parade'.

Musica, an Israeli company, is the organizer of an event called Love Parade, which has taken place in Tel Aviv since 1998. LPB claimed that the Tel Aviv event is similar to an event that first took place in Germany in the early 1990s. On December 22 1998 Musica submitted two applications for the mark LOVE PARADE, TEL-AVIV (and design). On April 26 1999 LPB filed two applications for registration of the mark LOVE PARADE (and design). The Israeli Trademark Office (ITMO) was of the view that the respective marks were similar and thus declared an inter partes proceeding under Section 29 of the Israeli Trademark Ordinance. Under that provision, the ITPT decides which application has superior rights if the parties fail to reach an agreement.

In ruling on the superiority of rights under Section 29, the ITPT took the following considerations into account:

• the good faith of the parties;
  
  
• the extent of use of the mark by each side prior to its respective application date (and perhaps even after the date of application until the first hearing); and
  
  
• the respective filing dates.

The first consideration tends to be the most important factor in determining priority of right.

In this matter, LPB's attorneys at the last minute advised that they would not be able to attend the hearing. As a result, the ITPT's hearing officer ruled that he would ignore the affidavit filed by LPB. Shortly thereafter, the parties both filed their written summations. LPB based its argument on a claim that under the doctrine of judicial notice, its mark LOVE PARADE is a well-known trademark and therefore Musica had acted in bad faith in filing its application.

The ITPT did not rule out reliance on judicial notice in ruling on a matter of registrability. However, it held that in an inter partes proceeding, registrability of the mark is not at issue, but rather which party has superior rights. LPB tried to rely on judicial notice as the crux of its evidentiary position regarding its superiority of right.

The ITPT rejected this gambit, ruling that, in an inter partes proceeding, a party must submit at least some evidence. If it does not do so, the ITPT will not allow sole reliance on judicial notice to serve as a surrogate. The fact that LPB did not file any evidence left the ITPT with no choice but to rule in favour of Musica. The ITPT held that the applications filed on behalf of LPB would be terminated. Musica's applications therefore went forward in the examination process.

Neil Wilkof and Gilad Shay, Herzog Fox & Neeman, Tel Aviv