Trade dress injunction modified for existing third-party stock, while empty cartons with the disputed packaging were ordered destroyed.

Temporary injunction in a trade dress dispute was varied only to the limited extent of allowing sale of existing stock already held by distributors, franchisees and retailers, because the goods were no longer in the appellant's custody and no post-injunction production was shown; the stock had to be marketed in packaging that was not red or otherwise similar to the respondent's packaging. The restraint remained in force for empty cartons bearing the impugned trade dress, as they were capable of continued misuse, and their destruction and non-use were directed.

---

---

Issues: (i) Whether the temporary injunction ought to be modified to permit sale of the appellant's existing stock packed in red cartons through third-party distributors, franchisees, or retailers; (ii) Whether the empty cartons bearing the impugned trade dress were liable to be destroyed and restrained from further use.

Issue (i): Whether the temporary injunction ought to be modified to permit sale of the appellant's existing stock packed in red cartons through third-party distributors, franchisees, or retailers.

Analysis: The stock already in the hands of distributors, franchisees, and retailers was no longer in the appellant's custody or control. The Court also noted that there had been no production after the injunction order and that the last invoice and manufacture dates preceded the relevant restraint. On that basis, the existing stock could be marketed if packed in a package that was not red in colour or otherwise similar to the respondent's packaging.

Conclusion: The injunction was modified to permit sale of the existing stock through third parties in the manner indicated, in favour of the appellant.

Issue (ii): Whether the empty cartons bearing the impugned trade dress were liable to be destroyed and restrained from further use.

Analysis: The empty cartons were found to carry the disputed trade dress and were capable of continued misuse. To preserve the effect of the temporary restraint, their destruction was directed and their utilisation was prohibited.

Conclusion: The empty cartons were ordered to be destroyed and not used, against the appellant.

Final Conclusion: The interim injunction was varied only to the limited extent of permitting disposal of the existing third-party stock, while the restraint on the impugned empty cartons continued.

---