NSW Intellectual Property Law Rights Against Subcontractor?

[Greg312]

If I was a fisherman and I engaged a subcontractor under an agreement to work for me...This person has no experience at all. I take them in and teach them all the trade secretes to catching the fish and take them to market to sell direct to the public. I show them the right fishing holes where you can always get the best catch and I pay them a commission to catch a fish. I also get them to go to market with the fish to sell direct to the public.

After 6 months, they hand in their notice and give me back my boat and all my fishing gear.

Next week, I take my boat out and this subcontractor is sitting right in my fishing hole with his own boat using all the gear I taught him to use as well as my 5 years of knowledge. I find out he had registered his business and starting obtaining all the equipment to set up his own fishing business 4 months ago while he was still under contract with me.

My concerns are I have been going to the markets for 5 years and he has been the new face of our business for the past 6 months, so I fear my customers are going to be confused that they brought my fish of him for the past 6 months that now he set up his store they will mistake his business as mine either though he has set up a new business name.

Do I have any legal intellectual property law rights in Australia? It's so frustrating I taught him all the trade secrets of what I have learnt over the past 5 years.

Thanks in advance.

 

[Rob Legat - SBPL]

You'd need to consider your restraint clauses in your subcontractor agreement - but they are notoriously hard to enforce, and of limited scope in both time and area. If there's an apprehension that customers will confuse his new business for yours, there's the concept of passing off to make him distinguish himself.

It's a fact of life that today's employee may be tomorrow's competitor, and a fundamental understanding that you can't copyright an idea. There's nothing you can do about the knowledge you've imparted to him.

 

[Leonard Mancini]

I agree with Rob.

Without a very worded restraint clause you have no hope of any redress. Even if you did the information would be regarded only as confidential information and not trade secret. Generally speaking if you can carry the confidential information in your head you really cant stop them walking with it. Trade secrets ar different but they need to be treated very specifically in order to gain that status. I do not think that fishing holes woild be regarded as a trade secret.

It is very difficult to protect information under australian laws as opposed to copyright works or inventions.