GAP, Inc and Others v Kingsgate Clothing (Pty) Ltd and Others (1109/07) [2009] ZAKZDHC 9; 2009 BIP 132 (KZD) (14 April 2009)

GAP, Inc and Others v Kingsgate Clothing (Pty) Ltd and Others (1109/07) [2009] ZAKZDHC 9; 2009 BIP 132 (KZD) (14 April 2009)

The court found that Kingsgate had provided a satisfactory explanation for the late delivery of its claim in reconvention and that the requirements for joinder under Rule 24(2) and Rule 10(3) were met. Both The Gap and Stuttafords were interested parties in the declaratory relief sought, and the claim disclosed a cause of action. The court held that it was not required to determine prospects of success or the merits of lis alibi pendens at this stage. Regarding the amendments, the court applied the principle that amendments should be allowed to facilitate justice unless irreparable prejudice is shown. The proposed amendments by The Gap were found to be bona fide and raised triable issues...

Citation
[2009] ZAKZDHC 9
Parties
Plaintiff: The Gap, Inc; Plaintiff: Gap (Apparel) LLC; Plaintiff: Gap (ITM), Inc; Defendant: Kingsgate Clothing (Pty) Ltd; Defendant: Salt of the Earth Creations (Pty) Ltd; Defendant: Paul Vivaldi Fashions (Pty) Ltd; Defendant: Stuttafords Stores (Pty) Ltd; Defendant: Stuttafords International Fashion Co (Pty) Ltd
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
14 April 2009
Case Number
1109/07
Procedural Posture
Civil Application / Interlocutory Applications for Joinder and Amendment of Particulars of Claim
Outcome
Kingsgate's application for joinder and claim in reconvention is granted. The Gap's applications for amendment are granted. Costs orders are made reflecting partial success for both parties.
Judges
Levinsohn
Legal Topics
Trade Mark Infringement, Passing Off, Joinder of Parties, Amendment of Pleadings, Declaratory Relief
Intellectual Property Civil Procedure Trade Mark Infringement Passing Off Joinder of Parties Amendment of Pleadings Declaratory Relief

Case Brief

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Parties

The Gap, Inc

Plaintiff

Gap (Apparel) LLC

Plaintiff

Gap (ITM), Inc

Plaintiff

Kingsgate Clothing (Pty) Ltd

Defendant

Salt of the Earth Creations (Pty) Ltd

Defendant

Paul Vivaldi Fashions (Pty) Ltd

Defendant

Stuttafords Stores (Pty) Ltd

Defendant

Stuttafords International Fashion Co (Pty) Ltd

Defendant

Procedural Posture

Civil Application / Interlocutory Applications for Joinder and Amendment of Particulars of Claim

Legal Issues

  1. 1 Whether Kingsgate may join Stuttafords as additional defendants in reconvention.
  2. 2 Whether the amendments to the particulars of claim sought by The Gap are permissible.
  3. 3 Whether the proposed amendments introduce bona fide causes of action, including trademark infringement and passing off.

Ratio Decidendi

The court found that Kingsgate had provided a satisfactory explanation for the late delivery of its claim in reconvention and that the requirements for joinder under Rule 24(2) and Rule 10(3) were met. Both The Gap and Stuttafords were interested parties in the declaratory relief sought, and the claim disclosed a cause of action. The court held that it was not required to determine prospects of success or the merits of lis alibi pendens at this stage. Regarding the amendments, the court applied the principle that amendments should be allowed to facilitate justice unless irreparable prejudice is shown. The proposed amendments by The Gap were found to be bona fide and raised triable issues...

Court Disposition

Kingsgate's application for joinder and claim in reconvention is granted. The Gap's applications for amendment are granted. Costs orders are made reflecting partial success for both parties.

Orders

  • An order is granted in terms of paragraphs 1, 2, 3, 4 and 5 of the notice of motion dated 28 January 2008.
  • The first, second and third defendants are directed to pay the first, second and third plaintiffs' costs of the application on an unopposed basis up to and including the date of the delivery of the replying affidavit.