BANANA REPUBLIC (ITM) INC Vs. DEEPA SUREKHA

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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.