DAUM: Montre Molle Coat Hanger watch 1971 |
Regarding the IP infringement - "The Israeli court held
that trademark infringement had not been established, as the plaintiffs had
failed to adduce proper registration certificates. It was noted that, even
assuming that there were registrations in force, the plaintiffs’ marks that
included the name Salvador Dali as the artist’s signature in stylised form (in
Class 3 for perfumes, Class 14 for precious metals including jewellery, and Class
33 for alcoholic beverages) were not in respect of goods “of the same
description” as the defendants’ goods (clothing) and, thus, did not fall within
the scope of ‘registered trademark infringement’ under Section 11(9) of the
Trademarks Ordinance (New Version) 5732-1972. The court also rejected the
plaintiffs’ claim that their mark was a “well-known trademark" and the
claim of passing off."
Thus, the case is interesting because it then hinged on the
scope of protection afforded by the right of publicity as an economic right -
and the right to control the commercial exploitation of one’s image, and secondly, whether the right of publicity survives a celebrity’s death.
In this case, the courts reviewed the duration of protection
of various IP rights under Israeli law, along with comparatively the duration
of the right of publicity in various US jurisdictions - concluding that the right of publicity remains after the death of the celebrity -
surviving for at least 25 years after the celebrity’s death.
Justice Aharon, came to the descion that because the complaint was within this 25 year timeframe, that through the making for sale of clothing and accessories bearing the name of Salvador Dali - the artist right of publicity was in-fact infringed, confirming that as a property right, the right of publicity can be transferred or passed on by succession and is therefore actionable by the celebrity’s estate.
Justice Aharon, came to the descion that because the complaint was within this 25 year timeframe, that through the making for sale of clothing and accessories bearing the name of Salvador Dali - the artist right of publicity was in-fact infringed, confirming that as a property right, the right of publicity can be transferred or passed on by succession and is therefore actionable by the celebrity’s estate.
The Israeli courts have taken a different approach to the
Spanish courts on this matter. In a recent case last year, (June 2016) - the Spanish Supreme court dismissed
an appeal from the Gala-Salvador Dalí Foundation in its lawsuit against a
Barcelona exhibition production company, finding that the foundation does not
have the legal standing to protect the artist’s image - in particular the court
pointed out that: "since the lawsuit was filed well after Dalí’s death in
January 1989...such circumstance implies that his
fundamental personality rights—specifically the right to his own image—became
extinct with his passing, as death marks the end of the legal personality of
natural persons.”