Tea packaging dispute boils down to passing off


In Wissotzky Tea (Israel) Ltd v Arava Cosmetics Ltd (Case 001216/03A), the District Court of Tel Aviv-Jaffa has issued an injunction against the defendant restraining it from using packaging for its tea products that was confusingly similar to the plaintiff's. The court noted that, among other things, the defendant's decision to change its original packaging design to one similar to the plaintiff's was evidence of passing off.

Wissotzky Tea has manufactured and marketed tea products in Israel since 1936 and is the leading company in Israel in this field. In 1999 it started to manufacture and market a product under the name Green Tea Series. Arava Cosmetics was incorporated in 1997 and also manufactures and markets tea products, including a series of green teas. Wissotzky filed a passing off action against Arava on the grounds that it had altered the packaging of its green tea products so that it was very similar to the Green Tea Series packaging.

The District Court of Tel Aviv-Jaffa upheld the complaint and issued an injunction restraining Arava from using the infringing packaging. The court held that when assessing the similarity of the packaging of products, the most important consideration is whether, on a general level, the similarities between them are likely to cause confusion. The court backed up this finding by saying that consumers purchasing products do not usually conduct meticulous comparative checks between competing products; it is the general look of the goods that has most influence. Thus, when the general look of two competing products is similar and they are placed next to each on the retailer's shelves, there is a significant risk of confusion.

The court noted that there are other determining factors to be taken into consideration under the law of passing off. Courts must also analyze the type of consumer that would purchase the goods in question. Here, the court reasoned that green tea is a shelf product that is offered for sale in supermarkets and other stores. The target consumer, therefore, was not comprised of sharp-eyed professionals but of the general public as a whole, including people who did not pay attention to details when buying products. The court specifically stated that the risk of confusion does not have to relate to the majority of consumers. It is sufficient that the risk relates to a small portion of the public.

Another factor that had a bearing on the court's decision was the fact that Arava had changed the original design of the packaging of its green tea products to one that was similar to Wissotzky's packaging. It concluded that this demonstrated that Arava had intended to copy the general look of Wissotzky's packaging.

David Gilat, Reinhold Cohn & Partners, Tel Aviv

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