Case Nos: IP-2023-000039 and IP-2023-000132 - [2024] EWHC 2889 (IPEC)

ISD argued that on a clear construction of the NDA, which can be decided now, by the time of the alleged breaches of the NDA the designs were ‘generally known or available to the public through no act or omission on the part of’ ISM within the meaning of clause 3(1).

Expanding on this, ISD said that on any view the products were on the market by September and October 2019. Thereby the designs of those products – the confidential information in issue – were made public by those dates. This cannot be said to have happened ‘through an act or omission on the part of [ISM]’, referring to the words of clause 3.1 of the NDA. That is because the products were supplied by Kaiyan in full knowledge that they were destined for open sale on the UK market. Accordingly by June 2020, the earliest date of any relevant act by ISM, clause 2.5 of the NDA did not bite.

Currentbody’s response was that the designs became public due to the joint actions of Kaiyan and ISM. The fact that ISM was only jointly responsible did not exonerate ISM or lead to the view that the publications happened through no act of ISM.

I take the view that Currentbody’s response is sufficiently arguable to go to trial. It raises in part a question of construction of clause 3(1) and this is likely to be an instance in which construction requires consideration of the purpose of clause 3(1) by reference to the factual matrix. The issue also raises a partly factual investigation into whether ISD or ISM was the relevant actor as between the I-Smart Companies and whether that matters.