Let bygones be bygones
Apart from claims for damages, it is the restraining order against a defendant which, most of the time, is the main focus of the litigation.
Scholars and courts alike have tried to shape the duties that such an order imposes on defendants. It is self-evident that the main duty for the defendant is to discontinue the prohibited actions once the order has become enforceable against it. In cases where the defendant has distributed the products in question to several commercial customers, it is obvious that the defendant must not continue these actions.
Beyond the obvious duty of merely “stopping” the prohibited actions, it was an accepted rule that the defendant had the duty to retrieve such products that were still legally its own and to which it could assert legal claims against a customer to return the goods in question. The question regularly arose of which, if any, responsibility the defendant had for products that had already left the defendant’s sphere of influence before the court’s restraining order but which continued to be offered and sold by customers.
An all-too-simple advice (mostly used by practitioners in the past) was that “what is gone is gone”, meaning that a defendant did not seem to be obliged to actively retrieve goods that had left its sphere of influence, to ask customers to return such goods, or to ban all related advertising.
