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A decision was recently issued by the Central District Court ruling that under
special circumstances, serving a brief of claim to a Palestinian importer via his
customs agent will be acceptable service of papers.
The plaintiffs requested that the importer be ordered to cease and desist all
activities related to the counterfeit games, and also sued the importer for a
monetary payment of 100,000 NIS. The plaintiffs further requested that the
Customs Branch be ordered to destroy the counterfeit games.
The foreign corporations had trouble delivering the brief of claim to the
importer's residence in Hebron, and therefore they delivered the brief of claim
to the Israeli customs representative handling the release processes, claiming
that it was impossible to serve briefs of claim in the Palestinian Authority. In
doing so, the plaintiffs relied on the Civil Procedure Regulations that allow
court papers to be served to a defendant in the Palestinian Authority via a
"commercial licensee" residing in Israel. The term "commercial licensee"
describes a person or entity who is a partner in managing the defendant's
business or the level of whose connection with the defendant is so intense
that it can be assumed that he would notify the defendant that a suit has been
filed. In this case, the foreign corporations claimed that such a connection
exists between the importer and his customs agent. The Palestinian importer
did not defend himself in court.
When the court was first asked to issue a decision in the absence of defense,
the court rejected the petition, since the brief of claim had been delivered to
the importer's customs representative rather than the importer himself. The
court ruled that a customs representative cannot be considered as the
"commercial licensee" of the importer, since the license given to the customs
agent by his client is limited to the actions of releasing the products from
customs only, and this is not enough to constitute appointment to "commercial
licensee". The court ruled that in this case, it was not proved that at the time
the action was filed there was strong communication between the importer
and the customs representative (even if in the past, during the release
process, the sides did indeed hold communications).
The plaintiffs were not satisfied with the decision and filed a petition for re-
examination. In this petition, they argued that they translated the brief of claim
into Arabic and even tried to hand the brief of claim in Hebron, but due to
security circumstances they were not able to do so. The plaintiffs claimed that
based on the questions asked by the customs representative, the latter
informed them that he delivered the brief of claim to the importer's agent, who
made his way to the customs agent to collect documents. Therefore, the
plaintiffs claimed that there is no doubt that the importer knew of the action
against him even if they did not succeed in delivering the brief of claim to his
residence in Hebron, and therefore they requested that the action be
accepted inspite of the absence of defense.
In light of the above, the court ruled that the cumulative weight of the evidence
presented, including the handing of the brief of claim to the customs
representative, the customs representative's notice that the brief of claim had
been delivered to an agent of the importer, and the long period of time that
had passed since the goods had been held by Customs, bases the conclusion
that the importer had already known of the claim and its content for a long
time, and that under the circumstances the action against him should be
accepted in the absence of defense. Thus, it was ruled that the brief of claim
was served properly, and since the importer failed to present a defense brief,
the decision in the absence of defense should be issued in accordance with
the plaintiffs' petition.
In the end, the court accepted the suit in its entirety and obliged the
Palestinian importer to pay 100,000 NIS, while ordering that the breaching
merchandise be destroyed.
The foreign corporations were represented by Adv. Sa'ar Pliner and Adv.
Gabriella Shwartz.
In the past, decisions have been issued which ruled that a customs agent
representing an importer vis-à-vis Customs regarding seized goods, is the
right address for handing in briefs of claim against that importer, provided that
the action is on the goods that were seized. In this case, the court preferred
not to reach this conclusion, but reached the same result in light of the unique
circumstances of the case.