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

Taking these two limbs of the I-Smart Parties’ argument in turn, in my view the reading of the Kaiyan and Currentbody pleadings pressed by the I-Smart Parties is too narrow. Kaiyan’s principal pleaded case that the disclosure of the designs by ISM to ISD was done for purposes other than those permitted by the NDA does not exclude such disclosure have been made also for promoting the business plan. The fact that disclosure for pursuing the business plan crops up elsewhere in the pleadings, including Currentbody’s pleading, does not alter Kaiyan’s main complaint that one of the purposes was the one complained about: for filing, claiming and enforcing IP rights.

As to the second limb, it appears that ISD or ISM at least claimed IP rights by applying for the Registered Designs before the expiry of the NDA. The point at which UKUDRs were claimed depends on what is meant by ‘claiming’. These aspects of Kaiyan’s allegation of breach of the NDA must go to trial.

Kaiyan is not on strong ground when it says that allegations of infringement of IP rights can have happened before the expiry of the NDA. However, it seems to me that this is a relatively minor point and is better explored along with the other matters at the trial.

Moreover, as in the ISD Claim, Kaiyan in the Kaiyan claim advanced reasons why there should not be summary judgment even if any of the I-Smart Parties’ arguments were correct. Kaiyan endorsed the reasons given by ISD in the ISD Claim, discussed above. To these, Kaiyan added two. First, on any view the parallel allegation of breach of confidence would survive a strike out of the allegation of breach of the NDA. The factual issues applicable to both will have to be explored. Secondly, the validity of RD 966 is bound to be dealt with at trial. I was taken through the pleadings in support of Kaiyan’s submission that much of the factual landscape relevant to the issues relating to the NDA will have to be considered anyway. There may be some substance in these two additional submissions.