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."
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