Day 083 - 06 Feb 95 - Page 17


     
     1
     2        That was the submission, my Lord, on behalf of the
     3        Plaintiffs.  The learned Judge then read out the terms 2(a)
     4        of that agreement:
     5
     6        "'Licensor will make available to Licensee during the
     7        period of this agreement all technical information and
     8        know-how relating to The Products and the manufacture and
     9        sale thereof which is or shall be at the free disposal of
    10        Licensor and Licensor hereby grants Licensee for the period
    11        of this Agreement only a non-exclusive worldwide licence to
    12        use such technical information and know-how (including all
    13        such technical information and know-how as may have been
    14        made available by Licensor to Licensee prior to the date
    15        hereof) in connection with the development, manufacture and
    16        sale of The Products'.
    17
    18        I should say that in clause 6 of the agreement there is the
    19        usual confidentiality clause under which the licensees
    20        undertake to keep the information to which they are
    21        entitled under the agreement confidential.
    22
    23        It is immediately apparent, because Unilever and at least
    24        one of the companies within the Gillette group are very
    25        much in competition and it is of course understandable that
    26        in such a field as this, Gillette think their products are
    27        much better than the Unilever products, that they should be
    28        by no means anxious to have disclosed to Unilever or indeed
    29        possibly some of Unilever's advisers the information which
    30        is now being sought.  Mr. Carr says, sensibly enough, that
    31        it might be possible that any difficulties in this
    32        particular regard could be overcome in the manner in which
    33        they are sometimes overcome when information of a
    34        confidential nature has got to be disclosed.  But
    35        Mr. Thorley's case is (and I think he is right in this)",
    36        Mr. Thorley, my Lord, is for the Defendants, "that in fact
    37        on the construction of this clause it is really quite idle
    38        to suggest that it gives any right to call for information
    39        outside its use in connection with the specific purpose
    40        provided for in this particular clause; it certainly gives
    41        no right to the defendants to call for the information for
    42        the purpose of disclosing it in connection with legal
    43        proceedings brought against them by Unilever.  Quite
    44        plainly, in the light of the provision relating to
    45        confidentiality, a disclosure of this kind would on the
    46        face of it be a breach of the provisions of this particular
    47        licence.  Mr. Thorley asked me to test the position by
    48        asking the question:  What would happen if, Gillette Boston
    49        having refused to part with the information - I may say
    50        that they have been approached and the evidence goes to 
    51        this that, having been approved, they refused to supply the 
    52        information - the defendants were to proceed against them 
    53        for disclosure of the information, alleging that, if they
    54        failed to do so, it would amount to a breach of contract?
    55        It is to my mind quite apparent on the face of it that any
    56        such plea would be rejected as absurd.  Therefore I have
    57        reached the conclusion that there is no right under this
    58        licence for the defendants to secure the information which
    59        is sought upon discovery."
    60

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