Designer clothing worth tens of thousands of euro is set to be destroyed after a court ruled a Limerick retailer breached the Trademark Act by selling the clothes without the permission of the manufacturer.
In one of the first cases of its kind in Limerick, US clothing giant Abercrombie & Fitch successfully sued McGazz Ltd which operates a small shop at the Milk Market.
During a lengthy hearing at Limerick District Court, Judge Aeneas McCarthy was told that more than 800 items of clothing were seized at the store on June 13, last after the company was granted a court order.
Brendan Considine, a private investigator hired by the Ohio based company, told the court he had conducted a “test purchase” on May 26, last and that he was subsequently informed by Abercrombie & Fitch that the item he bought was genuine and had been bought in the United States.
He said Abercrombie & Fitch is “very protective of its brand” and that it does not allow any third party to sell its clothing anywhere in the world.
Peter Clein BL, representing Abercrombie & Fitch, said his client only sells its clothing (including the Hollister brand) in stores which it owns and operates.
He told the court the company is due to open its first store in Ireland next month.
Sgt Andrew Riordan, Henry Street, told the court he attended the McGazz store on June 13, last after the company secured a court order compelling him to seize any clothing at the store which carried Abercrombie & Fitch trademarks.
He said after showing the order to a member of staff, he asked customers to leave the store before locking the door of the premises to “prevent any embarrassment”.
Sgt Riordan agreed that he had not heard of the Abbercrombie & Fitch or Hollister brands and that Mr Considine has assisted him on the day.
However, under cross-examination, Sgt Riordan agreed with Brian McInerney BL that he had a played “passive role” during the seizure of the clothing items and that it was Mr Considine who had “rooted through the shop” for more than two hours.
The court was told that in excess of 800 items of clothing were placed in 22 black plastic bags and taken by Mr Considine to a “lockup facility” in County Roscommmon.
Sgt Riordan admitted he did not know exactly how many items of clothing were seized from the store and that he did not know the location of the storage facility.
In his evidence, Brendan Considine said a “ledger related to the goods being sold in the shop” was also seized along with the clothing.
He told the court he had produced a “letter of authority” from Abbercrombie & Fitch and that he had shown the female staff member his driving licence when he arrived in the store.
He denied suggestions that he was a “raid merchant” and had acted unlawfully from Mr McInenery who said: “You don’t get to conduct raids anywhere [in this jurisdiction]”.
“I was there lawfully, Sgt Riordan was not au fait with the goods we were interested in,” responded Mr Considine during a heated exchange.
Conor Twomey of McGazz told the court he bought the clothes at Abercrombie & Fitch outlet stores in New Jersey and Pennsylvania.
He said he travels to the United States “every few months” and he told the court he had posted the clothes to Limerick and that he had paid excise duty and tax on them.
“These goods are absolutely 100% genuine and legal,” he said adding that he has never bought or sold counterfeit goods at the store.
“I understand that they [Abercrombie & Fitch] don’t like me and don’t want me selling them because I am competition and I do sell their goods at lower prices then they do,” he said.
Mr Twomey, who holds Irish and American passports, said staff at the outlet stores in America and “happy to see me” and that he is “very welcome” in the shops.
However, he agreed with Mr Clein that he had never asked for permission to sell Abbercrombie & Fitch clothing in his store at the Milk Market.
Mr Clein submitted that the actions of Mr Twomey were “detrimental to the character and trademark” of Abercrombie & Fitch because the company only sells its clothing through its own network of stores.
After hearing the case, Judge McCarthy said the law was on the side of the company and he granted an order for the destruction of the clothing seized.
The company rejected a proposal from Mr McInerney that the clothing be donated to charity instead of being destroyed.
However, the judge commented that such an order may also be in breach of the Trademark Act.
McGazz has until the end of next week to appeal the decision.