שנה להלכת א.ש.י.ר: 20 מגמות בפסיקת בית המשפט

The article explores the ramifications of the Israeli Supreme Court’s decision in A.S.I.RImport, Manufacture, and Distribution v. Accessories and Products Ltd. The Supreme Court’s comprehensive but controversial 1998 decision prohibits the misappropriation of intellectual goods, even when no intellectual property rights have been infringed,through a broad application of the unjust enrichment doctrine. In this article, wequantitatively analyze the effects of the A.S.I.R. decision, using data from the Supreme Court and lower courts, and demonstrate that the application of A.S.I.R. has been largely inconsistent. Moreover, we show that A.S.I.R. had has impacted on plaintiffs' chances of obtaining relief, but this impact did not distinguish between IP fields. That being said, we found that a broad interpretation of A.S.I.R. was the most important predictor of whether plaintiffs were awarded the unjust enrichment relief. In this article,we further argue that A.S.I.R. could have been used to remedy the distributive effects caused by a registration of IP rights. Since the registration functions as a barrier to obtaining IP protections, A.S.I.R. could have been used to effectively grant unregistered protection to authors and inventors who lack the resources to register their works.Given A.S.I.R.’s shortcomings, however, we ultimately conclude that a legislative approach to addressing the distributive effects of IP registration is preferable.