Intellectual property

[fiveyearplan]

I'm not sure if this is in the right place or not. To cut a long story short I have been in business for 12 years as a self employed person associated with a company (like a franchise). I was with company A for 6 years where I accumulated a lot of clients which formed my database. I joined company B 5 years ago and made verly little use of my database. I accumulated new clients within the past 5 years with company B but have not added these to my database. I would say 10-20 of the clients on my original database have also become my client under company B thus they would now be on the database of Company B.

I have now left company B and was shocked to receive a letter stating that I have been using their intellectual property. I have NOT contacted anyone on their database who was not already one of my longstanding clients from the time before I was associated with company B.

My question is who do these few crossover clients belong to? Am I within my rights to contact them seeing as we had a relationship that goes back longer than even the formation of company B.

I have no written contract with said company. I am really talking of such a small amount and I believe he is trying scare tactics with me as I have moved over to a new company and he fears their competition.

Any help and advice is greatly received!!

FYP

[Eloise01]

Re: Intellectual property

This could indeed be serious. I am assuming that you have no restrictive covenant in place, so I am discrading any thought of discussing that. But the fact that you may have known clients before joining Company B and their details are held on a database could fall within the rather grandiose sounding - but quite serious- "industrial espionage". I do agree that I strongly suspect this is bull**** scare tactics, simply because these things often are - but you may not take that as a confrmation that that is what it is, and simply assume there is nothing to this, because there may be. Did the letter come from the company itself or from a legal representative, and what did it actually say?

As an aside - being an employment lawyer, I really can't miss this opportunity to say it - if you enter into working relationship with anyone without a written contract, you need your head testing, especially if you are self-employed, because that contract would be the only protection you have! I would strongly recommend that you address this oversight in the future.

[fiveyearplan]

Re: Intellectual property

All of the self employed consultants (and I was one from April 2008) had a contract however the company went bust and was bought by this new person. He is still faffing around therefore everyone's contract has since expired and he has not issued new ones until such time as he is ready.

Subsequently I was employed by the company and my only 'contract' is an offer of employment by email. Note: I was employed and also still had my self employed business associated with company.

My main concern is can I contact people who are on my original database even if they went on to be a customer of mine with company B (meaning they are on his database now as well as my original database).

He is very litigious.
No I do not have any restrictive covenant in place.

[fiveyearplan]

Re: Intellectual property

The letter is from a solicitor and says "we have been made aware you are contacting clients of ......... using client data you obtained from ....... whilst an employee or consultant in order to promote products of a competitor."

"This is a serious misuse of ........'s database and you clearly obtained the information whilst an employee and consultant. This is also a serious infringement of intellectual property and a breach by you of the Data Protection Act."

[fiveyearplan]

Re: Intellectual property

The letter is from a solicitor and says "we have been made aware you are contacting clients of ......... using client data you obtained from ....... whilst an employee or consultant in order to promote products of a competitor."

"This is a serious misuse of ........'s database and you clearly obtained the information whilst an employee and consultant. This is also a serious infringement of intellectual property and a breach by you of the Data Protection Act."

[Eloise01]

Re: Intellectual property

Ah - that is why I asked if it was a solicitors letter or not. That takes it up a notch, expecially if he is litigatious anyway. Most bluffs are sent by the company! I think this may well be a point to be cautious about. You may have known them some years ago, but it is going to the devil if they are also on the company database and you also had access to their details through that. It could be worse, if you had had a restrictive covenant in place too... But on this one I would suggest that it would be money well spent to get an expert opinion from a lawyer who specialises in the area, and can examine the case in detail. I doubt that it is much more than hot air, but I wouldn't recommend that you rely on my opinion based on a few details!

[fiveyearplan]

Re: Intellectual property

Thanks Eloise. So do you think I should not contact people on my database? I have paper records of all these people going back 12 years so I can easily prove I made contact with them that long ago - they were put on the company database by me or do you think I should write back saying I won't contact them?

[Eloise01]

Re: Intellectual property

I think in the interim it would be better to make no contact until you have had some detailed advice. Otherwise I would ignore the letter until such time as you've had a chance to get that advice, and say nothing to them at all.

[Nibbler]

Re: Intellectual property

I have NOT contacted anyone on their database who was not already one of my longstanding clients from the time before I was associated with company B.

If that is true.

The letter is from a solicitor and says "we have been made aware you are contacting clients of ......... using client data you obtained from ....... whilst an employee or consultant in order to promote products of a competitor."

"This is a serious misuse of ........'s database and you clearly obtained the information whilst an employee and consultant. This is also a serious infringement of intellectual property and a breach by you of the Data Protection Act."

Then that clearly is not true, and the basis of their claim is false.

[fiveyearplan]

Re: Intellectual property

Thank you Nibbler - I completely agree.

[Eloise01]

Re: Intellectual property

Yes, but the problem is that what I, you or Nibbler think doesn't matter. If the company owner is as litigatious as you say it depends on what a court makes of it all. As I said, I beiieve it is hot air. But I don't have all the details, and you don't have the legal knowledge. That's a dangerous position to rely on. Obviously, if you don't want to spend the money on getting advice, you can take the risk and see what happens. But you must take into account that you are taking the risk knowingly, and if it goes pear shaped you will end up with legal costs and possibly worse to come. The other side of this coin is that had you had no contatct with these people as clients of company B in the last five years, would you really be raking through your diary for last known addresses of people you haven't had any contact with for years? You know they are currently on the company B database, you have used that database, have their current details and knowledge based on your employment at company B. I wouldn't risk it... not until I was sure it is hot air.

[gravytrain]

Re: Intellectual property

Interesting. I would have thought that someone could move employment and as long as he did not solicit the previous employers clients he would be OK, surely it is upto the client to decide who they do business with, and if they have built up a relationship with the employee it would be upto them if they follow him to the new firm.

Reading around it seems that the burden of proof is strictly on the previous employer to show that the employee has enticed the clients away.
This refers to a similar situation only there was a contract involved so you would think the situation would be even more restrictive on the employee.

http://www.icaew.com/en/library/subj...former-clients

[CleverClogs]

Re: Intellectual property

Get the local Freemasons to boycott the bugger!

Simples!

[Eloise01]

Re: Intellectual property

Interesting. I would have thought that someone could move employment and as long as he did not solicit the previous employers clients he would be OK, surely it is upto the client to decide who they do business with, and if they have built up a relationship with the employee it would be upto them if they follow him to the new firm.

Reading around it seems that the burden of proof is strictly on the previous employer to show that the employee has enticed the clients away.
This refers to a similar situation only there was a contract involved so you would think the situation would be even more restrictive on the employee.

http://www.icaew.com/en/library/subj...former-clients

The OP asked specifically if they could, in fact, contact the clients.

And the cases are different. The employer here is alleging intellectual property rights, not solicitation.

If the OP wants to take the risk without legal advice, that must be their decision. But it must be based on the correct laws, not reading what they want to hear in cases that's are about another area of law entirely.

[gravytrain]

Re: Intellectual property

The OP asked specifically if they could, in fact, contact the clients.

And the cases are different. The employer here is alleging intellectual property rights, not solicitation.

If the OP wants to take the risk without legal advice, that must be their decision. But it must be based on the correct laws, not reading what they want to hear in cases that's are about another area of law entirely.

Never disappoint with the vitriol Eloise

The fact is that the previous employer would have to prove solicitation of clients, and that is when a contractual obligation exists; here there is none.
Of course the OP has to make his own mind up, I certainly would not be advising any course of action, you?