Luring and withdrawing customers: means of struggle
Problem. Business challenge. Situation. As well as a host of other metaphors, epithets that allow you to fully or partially express your unpleasant emotions regarding the luring or withdrawal of your customers.
For some, such situations may be not only loss or reduction of business, the need to take additional costly actions to retain, return or search for new customers. But also a “starvation” death. Especially if you are a micro or small business.
The other day, my acquaintance businessman complained to me. He said that part of his sales managers took the customer base and left the company, creating a legal entity in parallel and luring (and quite successfully) its customers.
Can lawyers help in this situation, and if so, what exactly? But first, a little reservation.
1. Naturally, biting your elbows and thinking that a “handed down” database could be a commercial secret (hereinafter referred to as CT) and presenting a separate object of protection do not see the point. It is also useless to say that internal documents governing the conditions and procedure for admission to CT, the use of its information would be useful.
2. Also I will not talk about various technical, organizational and other means of protection.
3. We will assume that the database itself, which was submitted as a result of intellectual activity, also does not constitute a value or we do not have rights to it, or we believe that the chances of proving illegal use are unrealistic. Suppose a database is just an excel file.
4. In addition, let’s omit the options when the withdrawal is carried out by a member of the company or its sole executive body. Here comes the option to exclude and recover damages.
5. We exclude from discussion the questions of proof, strategy and tactics, as well as questions of the execution of acts of authorities.
With this in mind, the answer to this question is yes. You can help. Possible responses may include the following:
a) if we regard the behavior of a competitor in the market as an act of unfair competition, then you should go to the antitrust authority. Let me remind you about Article 4 of the Law on Protection of Competition.
b) if we regard the actions of a competitor as an abuse of the right, then clause 4 of article 10 of the Civil Code provides for recovery of losses. Let me remind you that both real damage and lost profits. It is unlikely that they will be waiting in court with open arms, but there is a way of protection. Moreover, the law and practice partly facilitate the process of recovering losses. According to Clause 4, Article 393 of the Civil Code of the Russian Federation, the amount of losses subject to compensation must be established with a reasonable degree of certainty. The court cannot refuse to satisfy the creditor’s claim for damages caused by non-fulfillment or improper fulfillment of the obligation, solely on the basis that the amount of losses cannot be established with a reasonable degree of certainty. In this case, the amount of damages subject to compensation is determined by the court, taking into account all the circumstances of the case, proceeding from the principles of justice and proportionality of liability to the violation of the obligation.
3) if the actions of the competitor will be accompanied by the dissemination of false information defaming the business reputation.
It remains only now to understand how much the business itself is ready to solve such problems using these methods.