Johannesburg — THE continuing legal saga over who owns the Gap trademark is set to continue in court, after US group Gap and Stuttafords won the right to appeal a prior decision.

In May, KwaZulu-Natal clothing company Kingsgate won an interim interdict against Stuttafords and US Gap International to stop the upmarket retailer from selling the branded items. The company claims it has sole rights to the name in SA, and is also pursuing a determination with the registrar of trademarks.

After Gap appealed the interdict, Kingsgate went back to court to force the companies to comply with the judgment while other arguments were continuing. But Kingsgate has failed to remove the items from Stuttafords' shelves.

The case is set to drag on, after Gap and Stuttafords won the right last week to appeal Judge Basson's decision not to recuse himself from the case. High court Acting Judge TM Makgoka said Basson relied on Kingsgate's arguments, to the extent that he cut and pasted many of these. "Of the 103 pages of the said judgment, only about two or three pages are the original writing of the court."

As a result, Gap and Stuttafords were right to be concerned over Basson's impartiality. Gap said it looked forward to selling the merchandise in SA.

Kingsgate legal adviser Zahir Moosa said the company would continue fighting the case and would keep using the trademark. He said the company had been using the trademark since 1983, which was when it acquired a company that had owned the brand. The Gap brand was registered in SA, in relation to clothing in 1971 by Alwyn Hirsch, while the first application for the use of the brand as a clothing label in the US was made only in 1974. US-based Gap says it was founded in 1969 and will keep fighting for its right to the trademark .