Showing restraint: non-competition law and former employees

When a valued employee leaves, it can be a difficult time for a business. As if to rub salt in the wound, sometimes the same employee surfaces in a rival organisation or starts a business in direct competition. As the realisation sinks in that this person knows some or all of your business methods, practices and even secrets, all of a sudden you’re calling your lawyer to demand immediate legal action.

Unfortunately, this is often the wrong time to ask a lawyer to take action to restrain unlawful competition by a former employee. It can be too late. Most of the necessary action should have been taken before the former employee was recruited. That is, much will depend on the employment contract, organisational policies and procedures and related HR documents being in place before and enforced during the time the (now) ex-employee worked for you.

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Dazzle the competition with records

A major survey of professionals in HR, published today by the Australian Human Resources Institute Ltd, confirms that the years 2005 to 2007 mark a period of significant change in the level of record keeping required by Australian employment law.

The highest percentage of those surveyed, 54.5%, rated the "level of record keeping" as the most significant change in those years.

Compliance by employers with employment law is simply no longer feasible with oral or mediocre records. The increased mandatory legal requirements for written records, consents and notices also mean that virtually no company or management team can rely on employment law templates and record keeping practices which pre-date Work Choices.

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Remove fuss and fuzz from employment leave entitlements

Australian employment law is a complex matrix, even for lawyers specialising in the area. Core employment law concepts, such as "leave entitlements" have been given new meanings since 2005 by Work Choices legislation.

While this is a difficult and dry topic, it has first rank practical implications for workplace morale and the long term financial wellbeing of employers and employees.

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Report finds 5.6 million reasons for doing a patent search

"Patents granted worldwide have increased at an average annual rate of 3.6% to about 600,000 in 2005. At the end of 2005, there were approximately 5.6 million patents in force worldwide. ... However, the use of the patent system remains highly concentrated with only five patent offices (China, Japan, the European Patent Office, the Republic of Korea and the United States of America) accounting for 77% of all patents filed and 74% of all patents granted."

These are highlights in a report by the UN body, the World Intellectual Property Organization (WIPO). Its assessment is in its "WIPO Patent Report: Statistics on Worldwide Patent Activity (2007 Edition)".

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"On the Internet nobody knows you're a dog"

This was the caption of Peter Steiner's brilliant cartoon in the New Yorker in 1993. Roughly speaking that was the first year of the commercialisation of the Internet.

Fourteen years later, the caption resonates with every new report on risks associated with use of the Internet.

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"On the Internet nobody knows you're a dog"

This was the caption of Peter Steiner's brilliant cartoon in the New Yorker in 1993. Roughly speaking that was the first year of the commercialisation of the Internet.

Fourteen years later, the caption resonates with every new report on risks associated with use of the Internet.

Read more


Top 10 questions on how to hire a writer

Joint authorship is the technical term to describe the topic of this post. The questions in this post will help you hire a writer with a legally binding contract, while also protecting you against a host of risks.

Joint authorship affects every person in business. Whether it is co-writing a report with someone else, commissioning a person to edit your work for your company, or even writing a great book with a ghost writer that you hope will sell like Fox in Socks or The Da Vinci Code - you will be writing jointly.

Joint authorship is very common for the production of books for children or young readers. It is rare to find a good writer and a good illustrator in the same person. When you do, you have great creators such as Dr Seuss. You also have The Magic Pudding, a classic loved by millions of Australians.

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What every business should know about common law employment contracts

The signal to noise ratio in Australian employment law is currently poor. Useful information is being lost in under-informed, false or irrelevant data. There are also too few messages about how to maintain good employment relationships.

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Brand destruction writ large

At Lightbulb we use the term "brand destruction" to describe avoidable business brand blunders. These incidents recall the Japanese ritual suicide known as hara-kiri (切腹).

Rarely do we come across brand destruction as clear as the July 2007 letter from Angus & Robertson bookshops (A&R) to its book suppliers who A&R says provide "unacceptable profitability". The key paragraph in A&R's letter states: "As a consequence we would invite you to pay the attached invoice by Aug 17th 2007. The payment represents the gap for your business, and it moves it from an unacceptable level of profitability, to above our minimum threshold."

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Integrated, differentiated and creative brand strategy

Brands from Microsoft, Fosters and Coopers are discussed here to distinguish integrated, differentiated and creative marketing strategy. Strategy should guide selection of the trade marks to register.

Some companies integrate their many brands to create a unified marketing message. For others the better strategy is to send differentiated marketing messages to serve niche markets. Microsoft and the Fosters Group Ltd illustrate these contrasting brand strategies. A company which consciously selects one or the other strategy gains clarity regarding what to register as a trade mark.

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Trade mark law strategy kept simple for blondes

On 11 August 2004 Fosters' Australian lawyers filed trade mark application number 1015213 for its new beer brand, "Carlton Pure Blonde". The following month the beer was launched. A year later the beer brand became Pure Blonde, dropping "Carlton", except for use on the bottle neck label. What was Fosters' trade mark law strategy or  legal battle plan for the shift from Carlton Pure Blonde to just Pure Blonde?

On its website the Fosters Group Ltd states "Pure Blonde - the first beer in Australia to be marketed as low-carbohydrate - is full-strength and great tasting, with 70% less carbohydrates than a regular beer."

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MOU or contact, which suits?

An MOU is a tool for deal making, relationship formation, and business structuring.

It is used by companies, not-for-profit organisations, and governments.

Although a memorandum of understanding ("MOU") has no specific status in law, it's a very useful tool when drafted well.

There are many situations in which MOUs are used and in which they are very effective and suitable as compared to the alternatives. 

A choice is often made by clients in consultation with a business lawyer between drafting an MOU, or a contract, deal memo, terms sheet, or heads of agreement.

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Barry Diller on media and corporate governance

Last week the Financial Times in the UK featured two striking videos interviewing Barry Diller speaking on media and corporate governance in the US.

Diller's views are free of a lot of the guff that usually surrounds those subjects. I recommend you watch the videos if you are in the media or Web business, or run a company.  It is not what he says, so much as how he says it. However if you know about Diller's career, you are more likely to value what he says.

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Statistical base of Gowers Review of IP in the UK

Intellectual property ("IP") law and policy are at the center of contemporary domestic and international trade and political negotiations. There is a wide spectrum of views.

Much of it is uninformed, myopic, and biased and rarely reflective of the complex ingredients at play, including economics, statistics, history, ethics and technology.

This complexity calls for structured decision making. Because statistics can aid rational discussion, this article sets out what organisations in the UK think should be the direction for IP "reform". It considers discussion of the Gower Review of Intellectual Property.

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Paydays, Maydays and Judgement Days

Success in business requires good decisions. Business stories are great teachers, including about business transaction and court cases.

Here are five current business stories. In each, lawyers and others have made decisions in or for a business. Those decisions helped determine outcomes, whether the story was about a payday, Mayday or favourable judgment day.

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