Misuse of Intellectual Property and Breach of Restraint of Trade

Wednesday, 26 March 2025
Legalwise Commercial Litigation Conference
Location: Webinar via Zoom
Topic: Competition Law Update: Misuse of Intellectual Property and Breach of Restraint of Trade
View the full program via the below link:

https://legalwiseseminars.com.au/seminar-details?event=14771484009

This presentation will explore the intersection between intellectual property misuse and restraints of trade (RoTs), offering practical insights into protecting business interests while navigating legal boundaries. Key topics include:

  • Protecting IP through RoTs: How confidential information, trademarks, patents, and copyrights align with enforceable restraints (General principles)
  • Reasonable Restraints: Defining acceptable time and geographic limits versus overreaching constraints. (Legislation followed by a few cases in a couple lines, what was reasonable?)
  • Drafting Resilient RoTs: Practical tips to ensure enforceability, and when courts might read them down. (Cascading/laddering restraints)
  • Impugning RoTs: Strategies to challenge unreasonable restraints in court. (Look to arguments in cases, three levels of arguments: One is that restraint is too broad geographically (hence unreasonable and cannot be read down absent any ladder/cascading), two is that the restraint is too broad temporally, three is blue pencil test (in other circumstances the Court may add words to help it make sense but will not impose their own deal to the point that the Court thinks is reasonable), if an employee one may argue that even if the covenant is binding the Court shouldn’t issue an injunction (though they may order damages) since that may prevent one from working at all (i.e. the more rarified the atmosphere of work the less likely the injunction)
  • Business Sales vs. Employment Contexts: Comparing RoTs for established businesses versus departing employees. Each state has a standard form for the sale of a business and in each of these contracts there is a form of restraint of trade given by the vendor if a component of the sale is goodwill (those restraints are far more readily upheld), try and find one or two business sales.

For some of Sydney’s other CPD seminars including on easements, please see Seminar History.