Poaching or withdrawing customers
Problem. Business challenge. Situation. As well as a lot of other metaphors, epithets, allowing to express in whole or in part your unpleasant emotions regarding poaching or drifting away your clients.
For some, such situations may not only be a loss or reduction of business, the need to take additional costly actions to retain, return or search for new customers. But the "hungry" death. Especially if you are a micro or small business.
The other day, my friend businessman complained to me. He said that part of his sales managers took the customer base and left the company, creating a parallel legal entity and luring (and quite successfully) his clients.
Can lawyers help in such a situation, and if so, with what exactly? But first, just make a reservation.
1. It’s natural to bite your elbows and think that a “rendered” database could be a commercial secret (hereinafter referred to as CT) and do not see a separate object of protection. It is also useless to say that internal documents regulating the conditions and procedure for admission to CT and use of its component would be useful.
2. Also, I will not talk about various technical, organizational and other means of protection.
3. Let us assume that the database itself, which was rendered as a result of intellectual activity, also does not constitute values or we do not have rights to it, or we believe that the chances of proving improper use are unrealistic. For example, a database is just an Excel file.
4. In addition, we omit the options when a withdrawal is carried out by a company participant or its sole executive body. Here there is an option to exclude and recover damages.
5. We exclude from the discussion questions on proving, strategy and tactics, as well as questions of execution of acts of government bodies.
With this in mind, the answer to the question is in the affirmative. You can help. The following actions may be possible responses:
a) if you consider the behavior of a competitor in the market as an act of unfair competition, then you should go to the anti-monopoly authority. Let me remind you that on Article 4 of the Law on Protection of Competition.
b) if you consider the actions of a competitor as an abuse of the right, then paragraph 4 of Article 10 of the Civil Code provides for the recovery of damages. Let me remind you that real damage and lost profits. It is unlikely that the court will wait for you with open arms, but there is a way to protect. Moreover, the law and practice partly facilitates the process of recovering damages. According to paragraph 4 of article 393 of the Civil Code of the Russian Federation the size of damages to be reimbursed must be established with a reasonable degree of reliability. The court cannot refuse to satisfy the creditor’s claim for damages caused by non-performance or improper performance of the obligation, only on the basis that the amount of damages cannot be established with a reasonable degree of certainty. In this case, the amount of damages to be reimbursed is determined by the court, taking into account all the circumstances of the case on the basis of the principles of fairness and proportionality of responsibility to the violation committed.
c) if a competitor’s actions are accompanied by the dissemination of inaccurate information discrediting business reputation, then Art. 152 of the Civil Code of the Russian Federation will be useful.
It remains only now to understand how the business itself is ready to solve such problems using the indicated methods.
November 23, 2017
Vitaly Vetrov
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