Sitting as a Deputy Chancery Division Judge last week, Roger Wyand QC was faced with a battle over 'personal harmonisers' in Sales v Stromberg  EWHC 1624 (Ch). Personal harmonisers are used in complementary medicine, being decorative articles worn as pendants and which contain allegedy energised or ‘imploded’ water treated by a process that involves centrifuging. Stromberg sold ‘Vortex Energisers’, cone shaped copper-tube spirals containing imploded water. From February 2003 Stromberg and another defendant traded as the Centre for Implosion Research; a third defendant handled the Centre's international sales. In 1997 Sales, a kinesiologist, contacted the defendants to find out more about imploded water and its uses. After they sent Sales a prototype of a personal harmoniser (illustrated below), he sent them the details of designs; they in turn undertook that they would not use the designs without the Sales' agreement.
The designs which Sale sent were rough sketches (illustrated here, top right) of, inter alia, a double spiral design called ‘Infinity’ and a triple spiral design called ‘Trinity’. When the defendants told Sales they planned to make and sell personal harmonisers under the Infinity and Trinity designs, he asked for a royalty of 10% of each sale. The defendants offered him just £200 in consideration of the designs, saying that they had been developing personal harmonisers similar to his ones even before he contacted them, these being based on ancient designs used by mankind throughout the ages. Sales sued for breach of confidence and for infringement of unregistered design right under the Copyright, Designs and Patents Act 1988. The defendants said the rough sketch setting out the designs was not a 'design document' within the meaning of the 1988 Act and denying infringement even if it was such a document.
Roger Wyand QC ruled that, on the evidence, Sales' claims for design right infringement and breach of confidence succeeded in respect of the Infinity design but failed in respect of the Trinity design. In his judgment he held as follows:
The IPKat is thoroughly sceptical about a lot of so-called complementary medicine. He is a little less sceptical about design right which, on the empirical basis of this case, works 50% of the time.
* Sales' designs were original in a copyright sense and were not commonplace.
* design right subsisted in the rough sketch since it was a design document.
* As to the Infinity design, there was an unbroken chain of causation that ran from the submission of Sales' design documents, through the prototype made to that design, to the final commercial product. Since the defendants’ products were basically the same as Sales' for Infinity, they were infringing articles;
* Since the Trinity design was not clearly the same as that which was shown in the design document, the claim for infringement of that design failed.
More on personal harmonisers here and here
More on kinesiology here
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