The Gap Inc And Ors. vs Praveen K. Jain And Ors.
2001 Latest Caselaw 93 Del

JUDGMENT

Madan B. Lokur, J.

1. The Plaintiff has filed this suit for a perpetual injunction restraining the Defendants from using the trade mark GAP in respect of denim jeans, readymade garments or any other allied and cognate goods or any other similar trade mark and from passing off their goods as the goods of the Plaintiff.

2. Even though the Defendants were served, there was no appearance on their behalf with the result that they were proceeded against ex-parte by an order dated 1.6th October, 1998. The Plaintiff was given an opportunity to file an affidavit by way of evidence. The affidavit has since been filed.

3. The Plaintiff is a company incorporated in USA in 1969. It originally adopted the mark/name GAP as its business name as also its trade mark. The Plaintiff says that it is internationally retailing its goods which are casual apparel, shoes, belts, bags, sun glasses and other accessories under the trade mark GAP.

4. Initially, the Plaintiff was marketing its products only in USA but from 1987 it expanded its business operations to Great Britain, Canada and Europe. As of now, it is marketing its goods in a large number of countries all over the world. So far as India is concerned, its trade mark has been registered before the authorities concerned in Classes 3, 18 and 25 being application No. 642539 of 10th October, 1994, No. 552967 of 19th June, 1991 and No. 552968 of 19th June, 1991 respectively. These are marked as Exh. P-5.

5. It is stated that the Plaintiff spends a huge amount on advertising and it has world wide sales running into millions of dollars. It is stated that the trade mark/name GAP has acquired substantial goodwill and reputation in India and has come to be exclusively associated with the Plaintiff and their goods.

6. It is stated that sometime in April, 1997, the Plaintiff first came across an advertisement for GAP denim jeans which were not manufactured by the Plaintiff. The advertisement appeared in a magazine called 'Denim Eye' which is perhaps aimed at the burgeoning market in India of clothes of denim. A photograph of the denim jeans appearing in the magazine is marked as Exh. P-2 while a photograph of the denim jeans manufactured by the Plaintiff is marked as Exh. P-1.

7. A perusal of both these photographs show that the goods are similar and the trade mark of the Plaintiff is used in its characteristic manner in Exh. P-2. Consequently, Exh. P-2 attempts to pass off the denim jeans as those of the Plaintiff. The advertisement which appeared in the 'Denim Eye' indicate the name of the Defendants as the advertiser.

8. It is slated that even on earlier occasions some other persons had tried to pass off their goods as those of the Plaintiff with the result that the Plaintiff was compelled to file Suit No. 2375 of 1994 in this Court which was disposed of in favor of the Plaintiff on 22-02-1996. A similar suit was also filed being Suit No, 3377 of 1995 in Bombay High Court which is stated to be pending and a Receiver has been appointed therein.

9. From the affidavit and the documents on record, it is quite clear that the trade mark GAP is associated exclusively by consumers and traders with the goods of the Plaintiff which has a world wide reputation. The Defendants have deliberately adopted the trade mark of the Plaintiff with a view to passing off their goods as those of the Plaintiff. This is bound to cause deception and confusion in the market.

10. Under the circumstances, the Plaintiff has made out a case for the grant of a perpetual injunction as prayed for. If the injunction is not granted, it will lead to unwary consumers purchasing the goods which are not manufactured by the Plaintiff but appear to be manufactured by the Plaintiff. This will irreparably damage the goodwill of the Plaintiff built up over several years.

11. Consequently, the suit is decreed. The Defendants, their servants, agents and stockists are restrained from using the trade mark GAP in respect of denim jeans, readymade garments or any other allied and cognate goods or using any other trade mark which is similar to the trade mark GAP.

Parties to bear their own costs.