Foot Science International Ltd v Xu
(2014 NZHC 645; 2nd April 2014)
Foot Science sought interim injunctions to restrain the manufacture, marketing and distribution of a replica orthotic, or the manufacture, distribution and use of a heating machine that moulds orthotics to the shape of a user’s foot. Foot Science alleges that Xu, a former employee of Foot Science, developed a replica orthotic and heating machine by using Foot Science’s confidential information. While an employee Xu signed an employment agreement that included a confidentiality clause.
The Judge was satisfied that there was a serious question to be tried. Xu had specifically marketed his company’s products to Foot Science’s international distributors. Foot Science had also obtained persuasive affidavit evidence that the characteristics of the starting materials, and their method of forming were unique to Foot Science in the orthotics field, and that it was implausible that Xu could obtain the likeness by reverse engineering.
The Judge also considered that the balance of convenience favoured the plaintiff. Damages would be hard to quantify and were unlikely to be an adequate remedy, and there was a lack of evidence that the defendant could meet any such damages. Subject to some minor variations the Judge granted the interim injunction relief measures sought by Foot Science.