Part V – Intellectual Property Rights and Employee Competition - Conclusion

Former employees and consultants are well positioned to identify gaps in the market and niches not fulfilled by present products and services. It is difficult to protect against competition in the post employment and consultancy relationships. The law is unreservedly in favour of competition at the end of relationships and the best protection available is only available for a limited period of time. Use of restrictive provisions that apply after the relationship is ended must be carefully and thoughtfully drafted as overstepping the mark renders the provisions unenforceable. The benefit of the provisions are only available if the employer is not in breach themselves. By shoring up employment and consultancy contracts, and ensuring that future intellectual property is dealt with appropriately reduces the avenues of competition available and creates a buffer period within which the employer may improve their product further.

Obviously, these intellectual property rights have a far broader application than simply between ex-employees, consultants and their former paymasters. Registered intellectual property rights protect particular materials in the form specified by the enabling legislation and unregistered rights of passing off and confidential information are the most flexible of the mix. In the final analysis, the facts of the case must fit a cause of action to obtain relief.