The Tel-Aviv District Court (Judge Shoshana Almagor) rejected a Red Hat lawsuit filed to protect its “Fendora Hat logo” registered trademark {D.C. 3768-12-10 .Red Hat Inc. v. Start Commercial Ltd. et. al}. This ruling marks a first attempt by the world renowned Linux company to defend its trademark rights in an Israeli court. The Court found, inter alia, that Red Hat supplied very little proof to support its claim that the company's Fedora trademark is a "Well Known Trademark" that deserves a wide protection.

The defendants, Start Commercial and its director, deal with IT and data protection. According to Red Hat's claims, the defendants used on their website and in their blog a logo that closely resembles Red Hat's registered trademark, thus infringing Red Hat's trademark rights. Red Hat further claimed that the Fedora Hat logo in particular is a "Well known trademark" and therefore entitles them to broader protection; that the defendants performed acts of "Passing Off" and unjust enrichment.

In determining whether or not a trademark has been infringed, the court applied 3 main tests, each comprising of additional secondary tests:

The first test is the sight/visual, sound and general appearance test. The second includes a review of the general context of the trademark i.e. the consumer public, the class of goods and the channels of trade. The final test refers to all other circumstances that may be considered in determining whether confusion exists. The three tests (the "Triangle Test") are complemented by the "common sense" test.

Following the implementation of these tests, and despite finding that the parties catered to the same consumer public through similar marketing channels, the court concluded that no infringing similarity could be found between the two trademarks as the illustrations of the plaintiff's trademark and the defendant's logo are not identical since the only similarity is the image of the hat and the reasonable consumer is not likely to believe that both marks come from the same source. The Court stated while referring to the plaintiff's tradename "The Mystery Man" that "…one cannot say that the defendant's trademark conveys the same message of mystery, as does that of the plaintiff's".

The Plaintiff further claimed that the Fendora hat itself is a "Well Known Trademark" and therefore entitled to broader protection - even if not registered. However, the court ruled that plaintiff provided very little proof supporting such a claim, and accordingly denying its Well Known Trademark claim. The Court indicated that "The Fedora Hat is not as known as to allow the court to exempt the plaintiff from proving that the mark is Well Known”. As the Plaintiff could not demonstrate that the Fendora Hat is well known in Israel, the dilution claim was also denied. Finally the court denied further claims of the Plaintiff arguing passing off and unjust enrichment referring to the Court’s initial finding that there is no visual confusion.

In our opinion the Court unjustly compared between the Plaintiff’s mark as used (incorporating the red Fedora hat) as opposed to the Plaintiff’s mark as registered in black and white, a registration which should provide a broader protection to the TM owner. Furthermore, it is our opinion that in the field of Linux, the Fedora image is distinctly identified with Red Hat, and the use of such hat by an Israeli company – who is also dealing with Linux – may demonstrate that this company is trying to create a link between its products and those of Red Hat's. A Plaintiff should be very through with the amount and extant of evidence submitted with the Court in order to make sure that all of its claims are fully supported as any of the claims may sway the court in its favor.