AM Moolla Group Limited v. The Gap, Inc.

The Gap, Inc. (Gap) (plaintiff) held registered trademarks for “Gap” in Lesotho, Swaziland, Zimbabwe, Mauritius, and Madagascar. Gap transported clothing bearing the “Gap” trademark from these countries to sell in other countries where it also held the trademark. However, the clothing from these countries transited through South Africa on the way to the countries in which they would ultimately be sold, either in ships stopping in South African harbors or through South Africa by land on the way to a harbor. Gap did not offer the clothing for sale in South Africa itself. Salt of the Earth Creations was a South African company that held the registered trademarks “Gap” and “The Gap” for clothing in South Africa. Salt of the Earth Creations, along with several other related South African companies calling themselves the AM Moolla Group (Moolla) (defendants), tried to prevent the transit of Gap’s clothing bearing the “Gap” trademark through South Africa. Moolla petitioned the police to impound the clothing under South African counterfeit law on the basis of the trademarks held by Salt of the Earth Creations. Gap obtained an order from the Durban High Court declaring that South African law did not prohibit Gap from transporting goods carrying the Gap trademark through South Africa for sale outside of South Africa. Moolla appealed.