Shabbat Parashat Bereishit l 5767

P’ninat Mishpat

Use of a Registered Corporate Name

(based on Halacha Psuka, vol. 16 - A Condensation of a Psak by the Beit Din of the Rabbanut of Yerushalayim)

Case: The plaintiff has a kosher restaurant in New York, which has a registered corporate name in New York. Subsequently, the defendant opened a restaurant with the same name in Israel. The plaintiff claims that the defendant’s use of the name he chose for his restaurant causes him damage. Customers are likely to think that the two stores form a chain. Since the plaintiff cannot control the quality of the defendant’s restaurant, he claims that he has the right to be concerned that his reputation and business will be hurt by the defendant. The defendant responds that he was unaware that there was another restaurant with this name, which was suggested to him by friends. Furthermore, since he has spent a lot of money publicizing his business with that name, it would cause him significant damage to have to change names at this point.

Ruling: Halacha does recognize the intellectual property rights of one who creates a new idea. This concept is found, among other places, explicitly in the chiddushim of R. Shimon Shkop (Bava Kamma 1). It can also be derived from the words of the Noda B’Yehuda (II, Choshen Mishpat 24). He disusses a case where Reuven used Shimon’s typesetting to publish additional copies of Shimon’s book. He rules that Reuven has to pay Shimon for the benefit he received from using Shimon’s typesetting. This is necessary because by printing unauthorized copies, Reuven prevented Shimon from selling the books he printed at the price he had planned.

There are similar rulings in the Sho’el U’Meishiv (I, I, 42) and Divrei Malkiel (III, 157). Although the Beit Yitzchak (Yoreh Deah V, 75) says that halacha per se does not recognize intellectual property rights, this is the type of minority opinion which need not be reckoned with concerning p’sak halacha.

The halachic concept of intellectual property rights extends to two areas. One is to forbid others from using the ideas or products in an unauthorized manner. The other is to demand payment from one who used them. Based on the former element, there is room to consider the plaintiff’s demand that the defenant cease using his corporate name. However, the rights only extend to cases where the intellectual property has real value in the eyes of the public from a commercial perspective. This is implicit from the Sho’el U’Meishiv (ibid.), who talks about one who published a sefer so that “his words were accepted throughout the world” as the explanation why another could not market his works without permission. In this specific case, beit din did not feel that the defendant’s use of the name of the plaintiff’s restaurant was likely to cause real commercial damage to the plaintiff. Therefore, the plaintiff cannot prevent the defendant from using the same name.

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