The Madrid Protocol and Israeli football pools
In a much-anticipated development, Israel is to accede to the Madrid Protocol on September 1, 2010. This will make it easier and cheaper for foreign entities to register marks in Israel. The Knesset amended the Trademark Ordinance to facilitate joining the Madrid Protocol back in 2007. However, implementation was held up due to problems with computerisation of the Trademark Examination Department and associated difficulties with meeting the tough deadlines.
UK football leagues sue Israel pools
Winner Toto runs the Israel national football pools and is entrusted with the management of sports betting in Israel. It is an organisation with a clear business orientation. In recent months, Winner Toto has undergone a marketing revolution with the aim of repositioning itself as a major business player in the market.
It makes a significant contribution to local communities by promoting recreational and sports activities, as well as improving the quality of life by using its proceeds to build public facilities such as school gyms, basketball courts, sports stadiums and swimming pools. Over the past decade, Winner Toto has placed about NIS 3 billion (more than $800 million) at the disposal of Israel sports.
The Winner Toto website generates 8 percent of the company’s total income. Winner Toto, a member of the European Football Pool (EFP), has signed marketing and business agreements with local basketball and football managing bodies.
The purpose of the EFP is to promote sports activities in co-operation with the Union of European Football Associations (UEFA). Winner Toto’s chief executive is a member of EFP’s Managing Committee.
"The court ruled that since the fixtures were the result of a fairly simple algorithm and matches are presented in chronological order, with concurrent matches arranged alphabetically, the data is not copyright protected."
Under legislation from 1967, Winner Toto has sole rights to organise sports betting in Israel. The profits earned are dedicated to the advancement of local sports. Since there are not enough matches played locally throughout the year for Winner Toto to rely on local fixtures, it also selects fixtures from the English and Scottish leagues.
Football pools are big business. Through their marketing subsidiary, the UK leagues sued the Israel Council for Organizing Gambling on Sports (Winner Toto) for revenues, claiming copyright infringement and unjust enrichment. After losing in the Tel Aviv District Court, they appealed to the Israel Supreme Court.
On March 14, 2010, the Israel Supreme Court upheld the decision against the FA Premier League, the Football League, the Scottish Premier League, the Scottish Football League and Football DataCo. (their licensing company).
The court ruled that since the fixtures were the result of a fairly simple algorithm and matches are presented in chronological order, with concurrent matches arranged alphabetically, the data is not copyrightprotected because it lacks minimal creativity.
Having established that there is no copyright protection, the court went on to rule that there is no basis for a remedy under the doctrine of unjust enrichment. Citing Justice Englard in the A.Sh.I.R. decision, the court held that in cases where there are no intellectual property rights, unjust enrichment is only applicable if there is a clear case of bad faith.
Since, by law, Winner Toto has a monopoly, there are no grounds to see unfair competition. There is no competition. This negates the grounds for compensation under the Law of Unjust Enrichment. However, there is a lack of logic in the court’s reasoning.
Unlike the A.Sh.I.R. precedent, where grounds for compensation were found despite the plaintiff failing to register trademarks and designs, in this case, the football leagues were not negligent in registering their IP rights, since copyright does not require registration and the fixtures are also apparently not covered by copyright law.
In such a scenario, there is unjust enrichment, since organisations such as Winner Toto free-ride on the leagues, which spend a fortune organising and promoting the matches. The fact raised by the defendants and upheld by the court—that Winner Toto increases interest in the UK league and, as a result, increases TV broadcasting revenue—is not relevant.
Dr. Michael Factor is partner at JMB, Fa©tor & Co. He can be contacted at: mfactor@israel-patents.co.il
