Ivan is your Sales Manager, managing the fused functions of Marketing and Sales at your esteemed establishment. He is given access to your list of customers and product pricing terms for that purpose and part of your strategic planning team. He oversees your CRM processes and supervises a team of 2 marketing executives who run around the island, make calls, and otherwise do all such things, offline and online to make the marketing function of your business run properly.
A large group shows interest in your business and wants to buy it out. Ivan gets wind that he would not be welcome after the merger, and decides to leave and open his own business. One of the two marketing executives join him in the new venture. You were advised that your non-compete clause can hold for only 6 months and you have a confidentiality protection term in your employment contracts forever stopping the employees for disclosure.
Seven months down the line, several of your clients tell you that they have been contacted by Ivan for similar products during that 7th month. Is there anything more you could do to protect your business?
In this eternal balancing act between the interests of the business and the freedom of a former employee to find work to feed himself, the Courts in Mauritius have generally been more inclined to favour former employees, they would consider the party who needs the more protection. However, as it happens, none of the decided cases have, so far, been asked to consider best practices which prevails generally in common law and civil law jurisdictions to come to a checklist which business or employees can use to gauge their respective positions, although indications are given as to where to look.
Generally, businesses keep their proprietary information in databases. In the above example, that would be a database of contact management details and systems. Databases can also consist of:
- Knowledge management systems
- Intranets
- Back office inventory systems
- Purchase order systems
- Websites
- Document management systems
Such databases are normally protected as ‘confidential information’ and, in Mauritius, as derivative works under copyright laws.
Whether you can protect your business further, in the above example, is therefore summarized mainly, all other things being equal:
- To your ability to convince on whether your list of customers was confidential to you and it contained so much information, and was so well protected that it can be said to be so confidential as to even amount to being your trade secret (otherwise your confidential information protection in your employment contracts may not work); or
- To you being able to show that your contacts database can be considered literary works, protected under copyright, because it is ‘original’, created by the company, and sufficient skill, judgment or labour had been expended by the author in the compilation to make it the company’s own work.
This may be a good opportunity to review how information is kept at your business premises and online and how you put into place policies and procedures to be able to justify that your information and customer lists are truly yours and yours alone. Smile and make a change.