AM Moolla Group Ltd. and Others v Gap (543/2003) [2004] ZASCA 112; [2005] 3 All SA 101 (SCA); 2005 (2) SA 412 (SCA); 2004 BIP 173 (SCA) (30 November 2004)

AM Moolla Group Ltd. and Others v Gap (543/2003) [2004] ZASCA 112; [2005] 3 All SA 101 (SCA); 2005 (2) SA 412 (SCA); 2004 BIP 173 (SCA) (30 November 2004)

The Supreme Court of Appeal held that the Counterfeit Goods Act 37 of 1997 does not apply to goods merely in transit or transhipped through South Africa when such goods are not intended for sale in the Republic and do not infringe local intellectual property rights. The court found that 'importation' under the Act does not include transhipment, relying on established statutory interpretation and precedent. The Act is intended to criminalise fraudulent imitation, not legitimate trade, and should not be construed to create barriers to legitimate international commerce. The appeal was dismissed, confirming that the respondent's actions did not contravene the Act.

Citation
[2004] ZASCA 112
Parties
Appellant: A M Moolla Group Limited; Appellant: A M Moolla Clothing (Pty) Ltd; Appellant: Salt of the Earth Creations (Pty) Ltd; Appellant: Kingsgate Clothing Manufacturers (Pty) Ltd; Appellant: Majestic Clothing Manufacturing (Pty) Ltd; Appellant: Star Shirt and Clothing (Pty) Ltd; Appellant: Rickemp (Pty) Ltd; Respondent: The Gap, Inc; Respondent: Gap (Apparel) Inc; Respondent: Gap (ITM) Inc; Respondent: Gap International Sourcing (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 November 2004
Case Number
543/2003
Procedural Posture
Civil Appeal / Appeal From Durban High Court
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Harms, Streicher, Farlam, Cloete, Ponnan
Legal Topics
Counterfeit Goods Act, Trade Mark Infringement, Goods in Transit, Interpretation of Statutes
Intellectual Property Commercial and Corporate Counterfeit Goods Act Trade Mark Infringement Goods in Transit Interpretation of Statutes

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 11 Party arguments 2
Sign in to unlock

Parties

A M Moolla Group Limited

Appellant

A M Moolla Clothing (Pty) Ltd

Appellant

Salt of the Earth Creations (Pty) Ltd

Appellant

Kingsgate Clothing Manufacturers (Pty) Ltd

Appellant

Majestic Clothing Manufacturing (Pty) Ltd

Appellant

Star Shirt and Clothing (Pty) Ltd

Appellant

Rickemp (Pty) Ltd

Appellant

The Gap, Inc

Respondent

Gap (Apparel) Inc

Respondent

Gap (ITM) Inc

Respondent

Gap International Sourcing (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Durban High Court

Legal Issues

  1. 1 Whether goods in transit or transhipped through South Africa are subject to the provisions of the Counterfeit Goods Act 37 of 1997.
  2. 2 Whether the act of transhipment constitutes 'importation' under the Act.
  3. 3 Whether the respondent's actions amount to counterfeiting or infringement of trade marks under South African law.

Ratio Decidendi

The Supreme Court of Appeal held that the Counterfeit Goods Act 37 of 1997 does not apply to goods merely in transit or transhipped through South Africa when such goods are not intended for sale in the Republic and do not infringe local intellectual property rights. The court found that 'importation' under the Act does not include transhipment, relying on established statutory interpretation and precedent. The Act is intended to criminalise fraudulent imitation, not legitimate trade, and should not be construed to create barriers to legitimate international commerce. The appeal was dismissed, confirming that the respondent's actions did not contravene the Act.

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.