The water-borne inflated playground franchised by Kelvin Travers as Waterworld did not excite one High Court judge, indicating the franchise contained little by way of intellectual property rights justifying legal protection when a Taupo company was sued after dumping the Waterworld product with plans to install its own aqua playground equipment sourced from China.
The High Court was told John Hindle and Odette Arthurs have since 2013 operated Taupo Wake Park on an artificial lake excavated near the Waikato River. Operations initially centred on a wake board facility with customers towed across the lake by cable. Inflatable slides and trampolines were later added.
In early 2023, agreement was reached with Mr Traver’s Waterworld Ltd for installation of a floating children’s playground. It was agreed revenue from customers using this playground would be split 50/50.
Mr Hindle was to later tell the High Court he viewed this as ‘a pretty casual arrangement.’ He had in fact signed a 27 page franchise agreement for five year’s use of Waterworld’s equipment and agreed to a restraint of trade promising not to set up in opposition to Waterworld’s services.
Mr Travers deflated the playground at end of the 2023 summer season, returning it to storage in Tauranga. The product sees little use over colder months and deteriorates if left in the open.
Evidence was given that attempts to discuss with Mr Hindle timings for reinstallation the following summer met with no response. Mr Travers learnt his customer was planning to go it alone with purchase of a similar product from China. He sued, claiming their five year agreement prohibited use of an alternative.
Justice Johnstone ruled Mr Hindle could go ahead in the interim with his alternative. If the restraint of trade is proved to be valid, Waterworld can recover damages, he said.
Waterworld is claiming $1.2 million damages for breach of contract. Justice Johnstone indicated Waterworld will have an uphill battle to prove it holds property rights of any substance able to be enforced.
Waterworld claims to have created a unique booking system. There was evidence the system was in fact based on commercially available software.
Waterworld claims there is goodwill attached to its brand. Justice Johnstone said he considered it unlikely that the branding of the particular waterborne structures upon which the public amuse themselves carried any real resonance in their minds.
Waterworld claims property rights to health and safety standards mandated in its operations manual. These appear to be drawn from Worksafe’s published requirements, Justice Johnstone ruled.
Waterworld Ltd v. Taupo Wake Park Ltd – High Court (21.12.23)
24.043