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former instructors of an infant drowning prevention program, who later founded a similar program, are not entitled to summary judgment on most of the original program creator’s claims against them, the 10th U.S. Circuit Court of Appeals held on Aug. 6. Barnett v. Shidler, No. 02-1047. Infant Swimming Research Inc. developed a scientific approach to infant drowning prevention, using nearly 2,000 prompts and procedures for teaching infants how to survive in water. Its employees were required to sign a nondisclosure agreement as well as a covenant not to compete. Three of the company’s instructors left to start a company called Infant Aquatic Survival. Infant Swimming filed a complaint against the former employees alleging Colorado state law claims of misappropriation of trade secrets, breach of contract and deceptive trade practices, as well as violations of the federal Lanham Act. A Colorado federal court granted summary judgment to the former employees. On appeal, the 10th Circuit affirmed summary judgment on the Lanham Act and the Colorado deceptive trade practices claims, finding that there was no evidence of confusion resulting from Infant Aquatic’s marketing of its program. However, the court reversed as to the remaining claims, finding that the district court’s trade secret analysis looked at the components of the Infant Swimming’s program in isolation rather than as a whole, and that there was sufficient evidence that the program was a trade secret to preclude summary judgment.

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