Reputation damage: rectification after wrongful messages
The success of a business depends (among others) on its reputation. Reputation damage can have very serious negative consequences and can sometimes even destroy a company. It is therefore not surprising that in recent preliminary relief proceedings the court rightfully reprimanded the responding party for his wrongful remarks about the claimant. Dutch media lawyer Thomas van Vugt summarizes this case.
Agreements recorded in termination agreement
What was the case? A conflict had arisen between two cooperating software developers. They agreed to terminate their cooperation and therefore drew up a termination agreement. The customers were divided between the parties. Another stipulation was that the parties would refrain, for a period of two years, from approaching the customers assigned to the other party. They also agreed that the parties would both receive the intellectual property rights to the software. This meant that both parties could further develop and market the software.
Mailing to customers: “Beware of fake product from claimant”
Sometime after the split-up the respondent found that the claimant was approaching customers and offering them his software, Carta Online. The respondent doesn’t put up with that and sends a mailing to the customers in which he states that Carta Online is a copy of Promptus (the respondent’s product). According to this message, the claimant had taken this software when he left the company. The respondent also states that Carta Online is a fake Promptus by a “vindictive ex-developer”.
No infringement of intellectual property rights by the claimant
These remarks are a bridge too far for the court. There is no infringement whatsoever of intellectual property rights by the claimant, because the parties are the joint owners of the intellectual property rights on the software they developed and are therefore both entitled to market this. The respondent also wrongfully suggested that the claimant unlawfully “had taken the software when he left the company”, whereas this was in fact part of the termination agreement. Finally, the designation “vindictive ex-developer” puts the claimant in a bad light, for no legal reason at all.
Court in preliminary proceedings: remarks are wrongful
The court finds that these remarks by the respondent are wrongful. The claimant did not act contrary to the law or the termination agreement. He also did not approach any customers of the respondent until after expiry of the two-year period. The respondent is of course entitled to try and keep his customers. However, not like this. The court also considers that after the two-year period the claimant was entitled to compete with the respondent. The respondent can only act against this if this was done by unauthorized means or in a dishonest manner. That is not the case here.
Reputation damage and rectification
The respondent is sentenced to refrain from negative messages. The court also finds that it is plausible that the claimant suffered reputation damage due to these messages. Therefore the respondent also has to send a rectification to all third parties that he sent the mailing to. This should state that the respondent “completely wrongfully made the suggestion that Carta Online was marketing a copy of Promptus.” It also has to be emphasized that Carta Online does not infringe on the respondent’s own software.