The output of partners or employees, Is it unfair competition?

unfair competition












It is very common for employees and partner, leave a company to start his own business or join a competitor company, but this is not always an act of unfair competition.

It is beyond doubt that there unfair competition when the output is produced by dismissal or termination of contract.

Keep in mind that the Constitution provides the right to work and this, the free choice of profession. Thus, and general, we can say that the abandonment of a business to assemble itself in the same business or work for a competing company does not constitute an act of unfair competition.

If established a covenant not to compete, his offense would not be an act of unfair competition but a breach of contractual obligations.

For the output of the company is considered unfair competition should be breach of good faith, circumstances that may occur in some cases:

  • Customer acquisition using listings, knowledge and relationships of the company, inciting disruption of contractual relationships is considered unfair competition. This behavior is clearer when customers make a significant percentage of turnover or significant discounts are offered in the new company.
  • A franchisee that opens stores in competition with the franchisor, advantage of the know-how and before the end of his contract.
  • The output "block" of key business people, leaving the former struggling to continue.
  • Attract customers to the new company while still being made to the old.
  • Using documentation from the old company and similarities in the names in the new company.

However, jurisprudence considers that these employees or partners, once they have left the company, can freely target customers of the old company, and even offer them lower prices, without this being unfair competition.

Also, customer lists are not considered business or trade secret: Its use in the new company would not constitute violation of Article Secrets 13 LCD or target customers of this list would be an inducement to illegal termination of a contract Article 14 LCD.

These cases often arise by unfair competition, but their interpretation is restrictive. We will have to review the criteria of the relevant Provincial Court, and ensure there is enough solid evidence.

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