Intrigue, claim and counter-claim in Nualtra case

When dietician Paul Gough went to his father-in-law, the chief executive of Actavo (formerly Siteserv), Seán Corkery in 2012 for help with funding a new business idea, he had no idea of the intrigue that lay ahead.

Limerick-based Nualtra, which makes oral supplements for malnourished patients, is growing strongly here and in Britain and targeting €20 million in annual sales by 2020.

In addition to Corkery, it has attracted other high-profile backers including Leslie Buckley, the Independent News & Media chairman and a director of Digicel alongside Corkery.

It has also, however, become embroiled in a series of legal battles on both sides of the Irish Sea. These involve allegations of trademark infringement made by a commercial rival, which has, in turn, admitted sending forged letters designed to damage Nualtra’s business. The trademark case was up for mention in the High Court this week. Legal documents filed as part of this action reveal a fascinating series of events.

Nualtra started to trade in 2012 and soon afterwards it entered the UK market, where it quickly gained market share. Its sales team targets dieticians in Irish nursing homes and National Health Service clinicians in the UK.

In the summer of 2013, Nualtra briefly considered co-operating with a Dutch company, Nutrimedical. The idea was abandoned shortly afterwards following a threat of legal action from the Dutch company, which owned a trademark for another product, Nutriplete. Nualtra ignored the threat and Gough kept building his business.

Product safety alert

In November 2014, Nualtra received a call from someone purporting to be a “Chris Baker” from the NHS, who asked it to email its liability insurance documents to “prescriber@nhs.tm”.

Nualtra complied.

Four days later, an emailed product safety alert, again purporting to be from the NHS, was sent out to an unknown number of NHS clinicians. It presented several alleged “disturbing and worrying facts” about Nualtra’s product.

It raised concerns about its insurance and data protection regime, pondered if clinicians were “putting patient safety at risk” by prescribing it, and said they should stop.

Nualtra also began to receive a steady stream of complaints and suggestions about its products from various Gmail addresses. A "John Smith" and a "Mark Latern" complained about its ads in Complete Nutrition magazine.

A “Daniel Jones” complained about Nutriplen’s shelf-life, while a “Dan Green” queried aspects of the product’s cost and criticised its Linkedin page.

Meanwhile, recruiters said job candidates were complaining Nualtra’s website was down while its Linkedin page revealed the logo of one of its rivals.

In May 2015, Nutrimedical filed a trademark case against Nualtra in the High Court, alleging the Irish company's Nutriplen could be confused with its Nutriplete. The Dutch company then sold its trademark rights for Nutriplete to a UK company, Aymes International, which joined it in the case against Nualtra.

Anonymous maildrop

Last July, an anonymous letter was sent to more than 400 medical practices in the UK, making similar allegations to the purported NHS email from the previous November. “You get what you pay for,” it said.

Nualtra traced the letter to a maildrop company, UK Mail. Using the code on the letter, it confronted UK Mail, which said the anonymous maildrop had been paid for by Roger Wertheim-Aymes, the founder of Aymes International.

Mason Hayes and Curran (MHC), Aymes’s lawyers in the Dublin trademark case, denied its client had anything to do with it. Nualtra launched a defamation case in the UK against Aymes. Aymes’s UK lawyers admitted it and settled.

Via its lawyers on both sides of the Irish Sea, Aymes then denied it was behind the November “NHS” email on five separate occasions. Nualtra hired forensic technology investigators, who traced the posting to an email address.

Nualtra then got a legal unmasking order from an internet service provider, which revealed the email had, in fact, been sent by a senior Aymes executive, Rachel Butler, who is Aymes's partnership director with the NHS.

Nualtra recently opened a second set of defamation proceedings against Aymes and Butler in the UK over the “NHS” email.

Meanwhile, Aymes’s Irish lawyers, MHC, last month wrote to LK Shields, Nualtra’s lawyers in the trademark case. MHC said its client admits sending both the anonymous letter and the email, apologises “unreservedly” and gave assurances over its future conduct.

Alleged interference

The trademark case is proceeding and is at discovery stage, although Nualtra is counter-claiming for an alleged interference with its business, which is denied. Nualtra is also suing Aymes for defamation in the UK. The full circumstances behind the mysterious Gmail and Linkedin campaign have yet to be uncovered, and no admissions have been made by anyone in this regard.

The cases continue.