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Battle of ice cream rages as giant manufacturer takes on outlets

A Gauteng-based gourmet ice cream manufacturer turned to court to obtain an interdict against a former employee as well as some franchise outlets. Picture: File

A Gauteng-based gourmet ice cream manufacturer turned to court to obtain an interdict against a former employee as well as some franchise outlets. Picture: File

Published Dec 7, 2021

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Pretoria - The battle of the ice cream played out in the high court in Johannesburg.

It involved giant ice cream manufacturer Paul’s Homemade Pty Ltd, taking on some fellow ice cream outlets in a bid to stop them from unfairly competing with it.

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The Gauteng-based gourmet ice cream manufacturer, which stated on its website that its ice cream was “cheaper than therapy”, turned to court to obtain an interdict against a former employee as well as some franchise outlets.

The ice cream retailer applied for a permanent interdict prohibiting them from opening a competing ice cream store in the Menlyn Park Shopping Centre.

As the applicant in the case, it also asked that its “competitors” be interdicted from further operating the Summa Sundae Bar located in the Mall of Rosebank.

The applicant said in its application that it supplied retailers countrywide and had 17 stores, some of which were run by franchisees and others by its head office.

Bianca Boshoff, one of the respondents, was employed as the applicant’s head of marketing and brand design from March 2019 until February this year, when she resigned.

Her employment agreement contained a confidentiality clause and a six-month restraint of trade provision.

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According to the applicant, she is in breach of this and planned on “stealing” his ice cream secrets.

The applicant’s claims include that she had meanwhile teamed up with others, which resulted in the opening of an ice cream kiosk in Rosebank.

In regard to its franchise operations, the applicant said these contain confidentiality clauses and restraint of trade provisions.

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Two franchise stores, one at The Grove and the other at Menlyn Park in Pretoria, were closed in June after

certain disputes arose between the parties. The applicant terminated the franchise agreements with immediate effect.

The franchise agreements contained restraint provisions prohibiting the respondents from operating within five kilometres of other operating outlets of the applicant for a period of 18 months.

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The applicant has meanwhile taken over the operations at the store situated at The Grove shopping centre, but it fears that those who operated the franchises before will open new competing ice cream outlets.

The applicant brought a successful application in August, without informing the respondents, to seize their electronic equipment to inspect it and see whether they were plotting to steal its trade secrets. This order was, however, later rescinded by the respondents involved and they received their electronic equipment back.

But as part of his latest application, the applicant said he noted, among other things on the electronic devices, a document styled “recipe”, which is a tasting menu pairing certain ice cream flavours with other ingredients.

He also saw marketing material, being a photograph of an ice cream sundae, as well as fortune cookie messages, belonging to his company.

All these made the applicant believe that there was a plot to open outlets, using his trade secrets.

The court, in turning down the application, said while the applicant was not entitled to rely on the information obtained from the respondents’ devices, what he saw in any event did not constitute them plotting to steal his trade secrets.

The picture of the ice cream sundae did not depict the product of the applicant and the ice cream flavours and pairings discussed did not infringe on the applicants’ domain, Judge EF Dippenaar said.

The judge added: “Our courts have held that the skill and expertise gained by an employee during the course of his or her employment form part of the general skill and knowledge of the employee and become attributes of the employee and are not protectable.”

The judge added that he was not persuaded that the applicant had established that its confidential information was being used by the respondents.

While the applicant feared that the respondents would use its recipes in their ice cream, the judge pointed out that the respondents made it clear that they received their ice cream from another manufacturer, which they simply sell.

They, thus, do not manufacture it themselves.

Pretoria News

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