that sold by plaintiff within the territory.
Further, plaintiff has a legitimate interest in protecting its accounts within the territory. Defendant has shown, in the words of Judge Lord, "an uncommon interest in the trade of [his] former employer." Certified Laboratories of Texas, Inc. v. Rubinson, 303 F. Supp. 1014 (E.D. Pa., Sept. 10, 1969). In a business that depends on customer servicing, good will is paramount and it chiefly attaches to the salesman rather than to the company or to the product. Thus, defendant had no right, while an employee of plaintiff, to surreptitiously transfer that good will to himself and has no right now to continue his efforts.
All other contentions of both parties have been considered and are hereby denied.
a. Plaintiff has established that the sales paraphernalia furnished defendant were not returned, thus entitling plaintiff to $500.00 liquidated damages.
b. Plaintiff has established that defendant made sales on behalf of Management while still employed by plaintiff and that after termination of his employment he continued to make sales to customers who had been customers of plaintiff (the term "customers" is herein defined as those to whom sales had been made) and additional concerns within the District of Columbia and the aforementioned counties of Virginia. Plaintiff is entitled to an accounting with respect to all such sales and the case is hereby referred to the Auditor for such purpose. During the period while defendant was still employed by plaintiff, the measure of damages is gross income to Management less payments made to plaintiff on those orders. During the period following termination of employment the measure of damages is the gross income derived by defendant less the expenses incurred in conducting that part of the prohibited business.
The burden of proving the payments to plaintiff and the burden of proving the expenses are on the defendant. The judgment for damages will run against James W. Hanker individually, and trading as Management Chemical Corporation.
In accordance with the above, it is by the Court, this 12th day of Feb. 1970,
1. The Court Auditor compute damages and render an accounting in accordance with the above instructions; and,
2. Defendant return all route books and other property supplied him by plaintiff; and,
3. Defendant be and hereby is enjoined for a period of one year from this date from:
a. directly or indirectly, for himself or in conjunction with or on behalf of other persons, corporations, firms or partnerships, selling, offering for sale, or soliciting the sale of disinfectants, soaps, cleaners, chemical specialties, water treatments, insecticides, degreasing and sanitary supply and floor maintenance materials and equipment or any other product serving the same purpose as any product offered for sale by plaintiff during the period July 17, 1961, through June 4, 1968, such injunction to apply to the District of Columbia and Fairfax, Prince William, Stafford, King George, Spotsylvania, Caroline, Orange, Louisa, Fluvanna, Albemarle, Augusta and Highland Counties, Virginia, and also to apply to any customer in any other territory to whom defendant made sales within the six months ending June 4, 1968; or
b. directly or indirectly, engaging in or entering the employment of or acting as a sales agent or broker for the products of or as an advisor or consultant to any persons, firms, partnerships or corporations engaged or about to become engaged in the manufacture, distribution or sale of disinfectants, soaps, cleaners, insecticides, water treatments, chemical specialties, degreasing and sanitary supply and floor maintenance materials within the aforesaid area and to the aforesaid customers; or
c. divulging to others or using for his own benefit any route books, customer lists, sales or product information obtained during the course of his employment by plaintiff relating to sales, formulae, processes, methods, machines, manufacturers, compositions, ideas, improvements or inventions belonging to or relating to the affairs of plaintiff, its subsidiaries, affiliates, successors or associated companies.
4. Defendant be assessed court costs and Auditor's fee.
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