GAP Restrains The Use Of GAPL
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An infringing use of aregistered trademark involves use of such trademark by another as a trade name or name of his business concern or a part of trade name, or business concern dealing in goods and services in respect of which the trademark is registered.1 Such use would not only impinge upon the business and profits of the registered owner of the trademark, but also take unfair advantage or be detrimental to the distinctive character of the mark. The instant Delhi High Court case is a good illustration in point.2 The plaintiffs were the registered owners of the trademark GAP, Old Navy and Banana Republic in respect of apparels sold through their retail stores. They alleged parallel importation of the surplus goods manufactured by them under the above trademarks but no longer in vogue and intended for sale in a specific country. The defendants were importing these goods and selling them at a lower price. They were also selling similar garments under labels of GAPL which was the abbreviated form of the name of their store 'Garments and Accessories Price Less'. The plaintiffs contented that the selling of garments bearing the label of GAP and those bearing the label of GAPL from the same shop would be detrimental to the distinctive character of the mark and cause confusion in the minds of the purchasing public. Accordingly, the plaintiffs filed an application for interim injunction which was granted by the court on the grounds of counterfeiting of obsolete goods of the plaintiff. The defendants however, were able to prove that they procured the obsolete goods from a proper channel being a store in Dubai which was purchasing them from the plaintiffs themselves. The court hence vacated the interim orders because no claim of counterfeiting was made out. The court said "there is little doubt that the defendant had properly sourced the goods by reason of the plaintiffs having put the goods in the channel of sale and no grievance in that behalf can be made by the plaintiffs." Again, the defendants sold the obsolete merchandise of the plaintiff at a discounted price with the original retail price label intact together with the name of the importer and the year of import. They were being sold even in the bags and hangers supplied by the plaintiffs. Another line of defendant's business was sale of self manufactured apparels under the trademark GAPL and GAPPLE. The defendants prayed for infringement and passing off action as this was damaging the sales and distinctive...
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