By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A former employee at a Grand Bahama-based business violated its intellectual property rights by copying its design for a 950-pound septic tank and using it for a rival business he “became involved with”.

The London-based Privy Council, which yesterday overturned a previous Supreme Court verdict, found that Nylund Hylton even “reproduced the spelling errors” in Gold Rock Corporation’s design for his new employer, Hylton’s Concrete Products.

Restoring the initial Supreme Court decision by Justice Estelle Gray-Evans, the Privy Council recorded that there were “overwhelming similarities” between the drawing for Hylton Concrete Products’ septic tank and that of Gold Rock’s.

And it also noted Justice Gray-Evans’’s suggestion, based on evidence presented at the initial trial, that Mr Hylton was the real owner of Hylton Concrete Products, and not his brother, Ferris Hylton, as initially claimed.

Recalling the background to the case, the Privy Council said Gold Rock Corporation and its Florida-based parent, Del Zotto Products, manufactured concrete septic tanks as a key component of their business.

“The origin of the drawing in the present case is a technical drawing created by Mrs Del Zotto for a 900-gallon septic tank,” yesterday’s verdict recorded.

“One of Gold Rick’s employees then used that drawing to create a technical drawing for a 950-gallon septic tank. It is the latter drawing (LAD5) which is the subject of the dispute. The drawing depicts a top view and a side view of the septic tank; details of various components such as the rise, the baffle, and the lid; constructional details such as the use of wire mesh and steel bars and so on. Each part of the drawing has measurements of the various components.”

The Privy Council said Mr Hylton “acquired intimate knowledge” of Gold Rock’s business while employed by it, including the mould it used for making septic tanks.

He also “made sketches and took photographs, which he took with him when he left”. Justice Gray-Evans found Mr Hylton would have seen drawings of “almost every concrete product” by Gold Rock, and had “direct access” to the company’s technical drawings.

Mr Hylton admitted at trial to seeing a drawing similar to LAD5 before leaving Gold Rock, the Privy Council added.

“Since leaving Gold Rock, Mr Hylton had become involved (to use a neutral expression) with an enterprise called Hylton Concrete Products, which he said was owned by his brother Ferris Hylton, and which was his current employer,” the Privy Council said. “Indeed, Mr Nylund Hylton said that he was Hylton Concrete products’ only employee.”

While Brian Rolle, a draftsman, made a technical drawing (HC8) for Hylton Concrete Products’ own septic tank, “based on the overwhelming similarities between that drawing and LAD5 (including the reproduction of spelling errors) the judge concluded that [it] was a copy of LAD5.

“She also found that since Mr Nylund Hylton was the only person associated with Hylton Concrete Products to have had access to LAD5, Mr Nylund Hylton was the only link between LAD5 and HC8,” the Privy Council said.

“She therefore found that Mr Rolle had indirect access to LAD5 via Mr Nylund Hylton. She noted that on a number of occasions in giving his evidence, Mr Nylund Hylton had given answers that suggested that he owned or controlled Hylton Concrete Products.

“She found that he had received payment personally for the supply of septic tanks; and that he issued receipts for septic tanks in his own name rather than in that of Hylton Concrete Products.

“She also recorded that Mr Nylund Hylton had told the police that he was using premises for constructing septic tanks; and accepted Mrs Del Zotto’s evidence that Mr Nylund Hylton had told her that he had gone into business for himself.”

As a result, Justice Gray-Evans found that the only possible conclusion was that Nylund Hylton “had infringed the copyright in LAD5” by giving instructions for a design that copied it.

“This is not a finding of reverse engineering, or indirect copying by the reproduction of an artefact without sight of the technical drawing by reference to which the original artefact was made. It is a finding of direct copying of the technical drawing itself,” the Privy Council said.

The Court of Appeal, though, reversed Justice Gray-Evans’ decision, prompting the appeal by Gold Rock and Del Zotto to the highest court in the Bahamian judicial system.

The Privy Council, in overturning the Court of Appeal ruling in favour of Mr Hylton, and against the companies, said the key question was whether the septic tank technical drawing was “capable of protection” under the Bahamas’ Copyright Act.

Harvey Tynes QC, acting for Mr Hylton, argued that the Industrial Property Act’s definition of ‘design’ suited the case better.

But, while the Act’s “more limited scheme of protection” was intended to prevent manufacturers gaining a monopoly over techniques and articles, the Privy Council found that the argument advanced by Mr Tynes “far from supporting [his ] case.... undermines it”.

It added that LAD5 was a technical drawing, and thus fell within the definition of ‘artistic work’ set out in the Copyright Act, thus giving Gold Rock’s intellectual property the necessary protection.

Finding that the Court of Appeal decision failed to distinguish between a ‘useful article’ and a technical drawing’ of such an ‘article’, the Privy Council said it “considers that the trial judge was right in holding that although the plaintiffs could not prevent copying the septic tank itself, they were entitled to prevent copying of the technical drawing”.

The London-based judges also found that Mr Hylton was “not absolved of liability” for the copyright violation simply because it was Mr Rolle that drew Hylton Concrete Products’ HC8 septic tank.

Gold Rock and Del Zotto Products were represented at the Privy Council hearing by Robert Adams of Graham Thompson & Company.