A design infringement claim in Israel requires two distinct findings. First, the defendant’s product must fall within the visual scope protected by the claimant’s design right. Second, the claimant must establish that the particular defendant performed an act amounting to infringement. Similarity between products does not establish who manufactured or distributed them; evidence of marketing a competing product does not itself establish prohibited similarity.
For a design protected under the Israeli Designs Law, 5777-2017, the comparison focuses on the overall impression on an informed user, taking account of available design freedom in the relevant field. That statutory test must be distinguished from the earlier judicial “eye test” developed under the former Patents and Designs Ordinance. The correct regime depends on the right’s legal basis and filing history.
What Should Be Compared in a Registered Design Infringement Claim?
The starting point is the registered design’s complete visual representation in the Israeli register. Comparing the accused product only with the proprietor’s current commercial product can be misleading. A marketed product may have colors, parts or later revisions that did not form part of the registered design, while the legal right is defined by what was actually registered.
Section 37(a) protects not only the registered design itself but also an appearance that does not produce a different overall impression on an informed user. Absolute identity is not necessary. Equally, sharing a design concept or functional purpose does not automatically constitute infringement where the overall appearance differs materially.
All registered views should be examined, including front, rear, side, top, bottom, perspective and other available representations. Two products may appear similar from the front yet differ substantially in side profile, underside geometry or the relationship between components. Selecting a single flattering camera angle does not define the scope of the Israeli right.
Who Is the Informed User Under Israeli Design Law?
Section 1 defines an informed user as a person interested in using the product embodying the design and familiar with the variety of designs in that field. This is neither necessarily a professional industrial designer nor a casual observer with no familiarity with the relevant type of product.
The perspective may differ for clothing, furniture, structural aluminum profiles or a graphical user interface. Evidence of normal use, the parts ordinarily visible during use and the range of established designs can help explain which features an informed user would notice.
The test is not a passing-off or consumer-confusion test. The claimant need not establish that purchasers believe the products come from the same manufacturer or that actual market confusion occurred. The question concerns their visual overall impression under the statutory standard.
Overall Impression Is Not a Count of Matching Details
The court should assess the appearance as a whole: contours, relative proportions, surfaces, ornamentation, textures, shapes and colors insofar as they form part of the protected design. Not every feature carries equal weight.
A dominant feature can affect the appearance more than several small differences, while a change in a conspicuous component may alter the overall impression significantly. Common visual elements dictated by familiar product categories or standard conventions should not be given the same weight as distinctive features.
Conversely, the overall-impression analysis does not authorize ignoring all details. The evidence should explain what gives the design its individual visual character. The fact that two products use the same manufacturing method or a similar material is not a substitute for visual comparison; changing the brand name or material does not necessarily avoid infringement if the resulting visual impression remains the same.
In Mipromal Jerusalem Industries Ltd. v. Klil Industries Ltd., Israeli Supreme Court, Civil Appeal 7125/98 (8 May 2003), the Court emphasized overall visual assessment under the former designs regime. Its analysis is significant historically, but Section 37 supplies the express test for designs governed by the 2017 Law.
Design Freedom: How a Crowded Field Changes the Analysis
Under Section 37(b), the court must take account, among other factors, of the range of design alternatives available for products in the relevant category. If practical constraints and established conventions make competing products visually close, a difference that appears modest in a field with unlimited design freedom may carry greater significance.
Calling a field “crowded” is not proof. The defendant or claimant should present dated designs, catalogues, product images and relevant market examples establishing what was commonly available. The evidence can illuminate the scope of the protected contribution without replacing the comparison of the specific accused product and the registered views.
In R. Sovcarono Ltd. v. Alan Or Jewelry Import and Export Ltd., Tel Aviv District Court, Civil Case 1673/05 (16 February 2012), a dispute concerning watches and straps involved a market with numerous similar designs. The case arose under the former Ordinance and does not establish that every minor distinction defeats infringement under the new statute.
Functional Features Do Not Confer a Monopoly on Engineering Solutions
Section 10 excludes appearance dictated solely by a product’s technical function and, within the defined conditions, certain shapes and dimensions necessarily used for connecting or integrating products. A useful product can nevertheless have protectable visual characteristics where real aesthetic or design alternatives exist.
In S.H.L.–Alubin Ltd. v. Extal Ltd., Haifa District Court, Civil Case 21740-03-14 (29 December 2015), a legacy design registration for an aluminum profile was invalidated where the disputed structural change concerned improved drainage and wind resistance. The judgment arose under the previous Ordinance; Section 10 now provides the relevant statutory exclusion for rights subject to the Designs Law.
Evidence of functional constraints can include technical drawings, possible alternative forms and expert analysis. The infringement test itself remains directed to visual appearance, not merely whether the two products perform an identical engineering function.
Broken Lines, Dashed Lines and Disclaimed Features
Israeli registered design representations may use broken or dashed lines, blurred portions or visual disclaimers to indicate product features for which protection is not sought. Regulation 14 of the Designs Regulations, 5779-2019, governs drawings and photographs and the presentation of excluded portions, including explanatory requirements where different markings are used.
A dashed line should not automatically be interpreted as a protected feature; nor should every broken line necessarily be interpreted as a disclaimer. The significance depends on the application and its representations. A line may indicate excluded context, a boundary of a claimed portion or abbreviated depiction of product length.
A claimant relying on the entire commercial product instead of the registered representations risks including features that the application expressly excluded. Likewise, a defense based on differences in disclaimed parts may overstate the legal importance of those differences.
For comparison, the UK Supreme Court considered the presentation of a children’s ride-on suitcase in PMS International Group plc v. Magmatic Ltd. [2016] UKSC 12 (9 March 2016), widely known as the Trunki case. The depiction of contrasts and surface features affected the assessment of the registration. The Israeli analysis must follow the actual Israeli representations and the Designs Law rather than import the UK outcome.
Presenting a Reliable Visual Comparison in Israeli Court
Strong evidence begins with the full registered representation and the actual accused product, shown in corresponding views under reasonably comparable conditions. Each photograph should have an identifiable source, date and connection to the product alleged to have been commercialized by the defendant.
Side-by-side photographs, matched views, careful annotations and physical samples may be more useful than an overloaded comparison marked with dozens of arrows. The analysis should identify proportions, dominant shapes, excluded features and distinctive ornamentation. For interfaces and screen displays, screenshots should capture the relevant appearance as used.
An industrial design expert may assist with the available design alternatives, industry conventions and engineering constraints. Expert evidence does not displace the court’s ultimate legal determination of overall impression.
Showing Similarity Is Not the Same as Proving Who Infringed
In Ganani v. Eshel, Tel Aviv District Court, Civil Case 1085/05 (12 January 2010), a claim alleging infringement of a registered design for road barriers was dismissed where the evidence did not sufficiently establish that the barriers presented were actually made or marketed by the defendants at the relevant times. Photographs of visually similar barriers did not establish the commercial acts attributed to the particular defendants.
For an Israeli infringement action, invoices, purchases, online offers, import records, manufacturer identities, dated listings and product samples may be needed to connect the accused articles to the defendant. The registered design’s visual scope and the prohibited commercial activities under Sections 37 and 66 should be analyzed separately.
If the right is unregistered, the claimant must also satisfy the copying-based standard and the knowledge conditions applicable to particular parties under Sections 61, 67 and 68.
Similarity, Design Validity and Earlier Disclosures
Infringement and validity ask different questions. The procedure for challenging registration is examined in Cancellation of a Registered Design in Israel. The infringement comparison concerns the accused product; novelty and individual character for registration are assessed against earlier publicly available designs under Sections 6 and 7.
Earlier designs can be relevant to both inquiries, but a defense that the registered right is invalid must be distinguished from the argument that the product lies outside the registered right’s scope. Section 70 permits a collateral invalidity defense in an infringement lawsuit. A separate challenge before the Registrar follows the cancellation route under Section 48.
The appropriate procedure may depend on whether litigation has already commenced, whether the defendant seeks to remove the registration from the register and the evidence available from prior disclosures.
Unregistered Design Infringement: Similarity Plus Copying
Section 61 also uses the informed user’s overall impression to define the scope of an unregistered design. But the right is framed as protection against commercial manufacture of a copied product. Independent creation is therefore a material issue even where the resulting appearances are alike.
Evidence of copying may include access to the original product, development chronology, design files, correspondence with suppliers and unusually close matching of distinctive visual features. Where an importer or retailer is sued rather than the manufacturer, Section 68 adds its own knowledge requirement.
Foreign rights holders relying on an unregistered Israeli design must also establish the six-month Israeli commercial-market condition and the three-year term. These issues are examined in our Unregistered Design Infringement in Israel guide.
The Former Ordinance’s Eye Test and the New Statutory Test
Section 37 of the former Patents and Designs Ordinance referred to fraudulent or obvious imitation of a registered design. Israeli case law developed an “eye test” focused on the overall appearance perceived by the relevant consumer, with attention to the product’s nature, degree of novelty and density of prior designs. Likelihood of confusion could assist in some circumstances but was not invariably a mandatory element.
For a design registered under the 2017 Designs Law, Sections 37 and 61 provide the direct statutory framework. The old eye-test decisions may be useful for historical or comparative reasoning but should not obscure the distinction between registered and unregistered rights under the newer statute.
For representation in infringement disputes see Design Litigation in Israel. The statutory text is available in the official English translation of the Designs Law; its Hebrew version is authoritative in case of inconsistency.
