Gap (ITM) Inc and Others vs Deepa Surekha and Others

T.S. Thakur, J.—In an infringement and passing off action, the plaintiffs-appellants filed an application for an ad interim injunction which was granted ex parte. That order has been partly modified by another order dated 6th November, 2007. The plaintiffs-appellants has assailed the modification to the extent it has vacated the order in part and imposed costs.

It is, in our view, unnecessary to set out the factual backdrop in which the controversy arises. We say so because learned Counsel for the defendants-respondents submits that although the order passed by the learned Single Judge permits the defendants-respondents to use trade mark ''GAPPLE'', the defendants-respondents do not intend to use the said trademark either in the same writing style or colour combination or otherwise. He submits that with the statement made by him the controversy in the appeal whether the modification made by the learned Single Judge and the permission granted to the defendants to use ''GAPPLE'' as trademark in a different style and colour combination becomes academic.

Mr. Jain, learned senior counsel appearing for the plaintiffs-appellants submits that so long as the defendants-respondents do not use the trademark ''GAPPLE'' in the same or different writing style or colour combination, the plaintiffs-appellants would have no further grievance to make in the present appeal which, according to learned Counsel, can be disposed of in the light of the statement made by the respondents. He further submits that certain observations made by the learned Single Judge in the impugned order are likely to prejudice the appellant and may, Therefore, be taken as observations relevant only for purposes of disposal of the interim application. The said observations, Mr. Jain, argued need not influence the Single Judge or prejudice the rights of the plaintiffs in the final disposal of the suit. He further submitted that learned Single Judge has imposed costs upon the plaintiffs-appellants for the alleged non-disclosure of certain relevant facts. Mr. Jain argued that while the appellant is ready to deposit the costs, it may be made clear that such a deposit shall be without prejudice to the appellants'' rights and contentions in the main suit and would not constitute an indictment of the appellant that there indeed was some non-disclosure as alleged.

In the circumstances, Therefore, and in the light of the submissions made at the bar, we record the statement made by the defendants-respondents that they shall not use ''GAPPLE'' as a trade mark in the same written style or colour combination or in any other writing style or colour combination or any other form pending final disposal of the suit. This statement shall act as a self-imposed injunction upon the respondents against the use of ''GAPPLE'' as a trademark but the same shall be without prejudice to the contention of the defendants-respondents that previous user of the ''GAPPLE'' as a trademark was justified. We, however, make it clear that observations made by the learned Single Judge for or against the parties in relation to any contention urged before him or any matter dealt with in the order shall be without prejudice to their rights and contentions in the main suit. Consequently the main suit shall be disposed of uninfluenced by any such observation. The deposit of costs imposed by the learned Single Judge upon the plaintiffs-appellants shall also similarly remain without prejudice to the rights and contentions of the appellant in the suit.

The appeal is, with the above observations and modifications, disposed of leaving the parties to bear their own costs.