Intellectual Property Enterprise Court

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

Fecha: 15-Nov-2024

The arguments in the Kaiyan Claim

The arguments in the Kaiyan Claim

54.

The I-Smart Parties’ application to strike out Kaiyan’s claim insofar as it relies on ISM’s alleged breach of the NDA raises issues that in large part overlap those in ISD’s application in the ISD Claim.

55.

Kaiyan’s pleaded case is that the designs of the face mask and neck bib provided by Kaiyan were disclosed by ISM to ISD and that this was in breach of the NDA by ISM because it was done:

‘… for purposes other than those permitted by the NDA, in particular for the purpose of: (a) [filing applications for the Registered Designs] and (b) claiming, and alleging infringement of, intellectual property rights based on the designs for the Kaiyan Neck Bib and Kaiyan Face Mask against third parties, including Currentbody …’

56.

Kaiyan says that ISM acted in breach of the NDA by claiming and alleging infringement of IP rights based on the designs.

57.

Kaiyan also pleads that in consequence of the foregoing, both ISM and ISD are in breach of an obligation of confidence owed by them to Kaiyan.

58.

I was taken through the pleadings by counsel for the I-Smart Parties, among them Currentbody’s Reply to Defence to Counterclaim in the ISD Claim which includes this:

‘Kaiyan disclosed the Kaiyan Designs to I-Smart on the basis and understanding that it was doing so pursuant to the Kaiyan NDA and in accordance with its terms, in particular clause 2. I-Smart accepted that disclosure on the same understanding and on the same basis, and to further Business Purpose of the Kaiyan NDA, eventually leading to a customer/supplier relationship.’

59.

The I-Smart Parties submitted that Kaiyan’s and Currentbody’s pleadings were consistent only with the disclosure of the designs by ISM to ISD having been done to further the arrangement for the supply of the products by Kaiyan to the I-Smart Companies and distribution by Currentbody, nothing else.

60.

The claim to IP rights as against Currentbody and the allegation of infringement only happened long after the expiry of the NDA. The two purposes relied on by Kaiyan to support the alleged breach of the NDA are both untenable.