The Supreme Court of Appeal on Wednesday, 23 May 2012, ruled the use of a registered trademark by Gap for its range of body care products from 2002 to 2007 was in good faith.
The ruling will help the company to expand its offering in SA. It plans to open 15-20 standalone stores with franchise partner Stuttafords in the next five years.
Judge Visvanathan Ponnan said in his judgment last week that in 2002, Gap International entered into a retailer agreement with Clicks to distribute personal care products in its stores.
In 2006, Stuttafords was appointed by Gap as an authorised distributor of Gap products in SA and placed an order for body care products in 2007.
Judge Ponnan said this evidence adduced by The Gap refuted the suggestion that it had not used its mark in SA.
The US corporation has been in litigation over the years with a number of South African companies over the ownership of the trademark in respect of clothing. Last year, the South African companies and Gap reached a settlement that all Gap trademarks and related intellectual property were assigned to the US corporation.
In 2008, three South African companies, Salt of the Earth Creations, Kingsgate Clothing and Paul Vivaldi Fashions, brought an application in the high court, in terms of the Trade Marks Act, for the expungement of Gap's trademark from the Register of Trade Marks on the basis of non-use.
The high court ruled in favour of the South African companies in 2010 and said the trademark should be expunged as Gap had not used its trademark for those products.
The corporation applied to the appeal court to set aside the judgment. Because the application for expungement was issued in March 2008, the law required Gap to prove it had used the trademark between December 2002 and December 2007.
The US company is now the sole owner of the trademark in respect of clothing in SA, and yesterday's judgment means it now also owns the trademark for body care products in SA.
Source: Business Day
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