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06/23/77 EASTERN MARBLE PRODUCTS CORP. v. ROMAN

June 23, 1977

EASTERN MARBLE PRODUCTS CORP.
v.
ROMAN MARBLE, INC. & OTHERS *FN1



Middlesex. Bill in equity filed in the Superior Court on September 12, 1973. The suit was heard by Zarrow, J. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Quirico, Braucher, Wilkins, & Liacos, JJ.

SYLLABUS BY THE COURT

Trade Secret. Minor. Contract, With minor. Unfair Competition. Practice, Civil, Action to enjoin competition.

The opinion of the court was delivered by: Quirico

An injunction against a manufacturer of marble products to prevent it from producing two-tone sinks was warranted by the fact that the process involved was a trade secret even though the process for making similar sinks of one color was not. [838-840]

Evidence in an action by a corporation to enjoin a rival manufacturer of marble sinks from using information acquired by former employees to produce a two-tone sink warranted a finding that the corporation had taken measures to guard the secrecy of the information. [840]

The duty of a former employee of a corporation not to use or disclose confidential information acquired in the course of his employment did not turn on the existence of a legally enforceable contract. [840-842]

An action in which a Judge granted a permanent injunction against a manufacturer of marble sinks preventing it from producing two-tone sinks on the ground that the process for such production was obtained through disclosure of trade secrets was remanded to permit inquiry as to whether the process remained a trade secret. [842-843]

The plaintiff Eastern Marble Products Corp. (Eastern Marble) brought a bill in equity to enjoin Irving Cann and Robert E. McEachern, Jr., former employees of Eastern Marble, from using or disclosing Eastern Marble's trade secrets involved in the manufacture of synthetic ("cultured") marble sinks.

A Judge of the Superior Court ruled that the process of manufacturing cultured marble sinks was not a trade secret. He also ruled that the process of manufacturing two-tone one-piece sinks, with the top one color and the bowl another color, was a trade secret. Based on the finding of an "express employee agreement for nondisclosure" between Eastern Marble and McEachern the Judge enjoined McEachern from disclosing or making use of Eastern's trade secrets. Based on a finding that Cann "wrongfully obtained the process for the manufacture of a two-tone cultured marble top and bowl," the Judge enjoined Cann from manufacturing two-tone one-piece cultured marble tops and bowls.

From the record before us, it appears that McEachern has not appealed from the final decree. *fn2 Cann, the only defendant presently before the court, appealed to the Appeals Court, and we transferred the case here. G. L. c. 211A, § 10 (A). For reasons hereafter stated, we agree with the Judge's Conclusions, but remand the case to permit the parties to be heard on the matter of the duration of the injunction.

We summarize the facts found by the trial Judge. Eastern Marble is a Massachusetts corporation organized in 1970. It entered into a franchise agreement with Marble-Crete Products, Inc. (Marble-Crete), permitting manufacture of simulated marble sinks according to a formula and process furnished by Marble-Crete.

Sometime thereafter Eastern Marble and Marble-Crete developed a method of manufacturing a one-piece molded sink with the flat surface top of one color and the wash-bowl of another color. Peter Kevorkian, the president of Eastern Marble, experimented for several months to develop the process. Formulae for the manufacture of cultured marble are available to the public. Yet, of the approximately 100 manufacturers of cultured marble in the United States, twenty-one of whom are licensed by Marble-Crete, Eastern Marble and Marble-Crete alone have manufactured one-piece two-tone sinks.

The employees of Eastern Marble were instructed to keep the public out of the manufacturing area where various formulae and notes regarding production were posted. Further, all the employees who were involved in manufacturing were obliged to sign agreements to the effect that they had learned the methods, procedures, and formulae of Eastern Marble and Marble-Crete for "the sole purpose of assisting in manufacturing said products," that they would not ...


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