Leaving a company then making a game similar to theirs, is this legal or illegal? My contract with them had a 12 month non-compete clause which has not expired but that should not stop me coding a game in my spare time(i have a new employer now so making the game would not be my full time occupation). Any ideas, thoughts, questions...

1. Talk to a lawyer.
2. What is allowed depends on the exact terms of your contract, so talk to a lawyer.
3. Preparing to compete may constitute competition under the employment agreement or may not - a lawyer will be able to tell you.
4. Talk to a lawyer
5. Even if your contract does not prevent you from doing this it does not mean your former employer won't attempt to take legal action. This is especially true if your game is similar to theirs. They may well think you have stolen code and come after you for that, instead of for contract/competition reasons. (I know of one professional dev company that did this to former employers - The claim was wholly unjustified but it cost the guys several thousand in legal fees to get their former employer to go away.)
6. Talk to a lawyer before you start and before they come after you.

Obscure is correct; definitely talk to a lawyer.

In the US many elements in these non-compete clauses would never stand up in court; they tend to be very overwritten here. However, even sucessfully defending yourself in a case would be a small consolation for draining all of your financial resources and several years of your time over a court battle.

Keep in mind common sense can go out the door when the law comes into play. The 1st hour of a 4 hour CPR course I took was spent going over the legalities of giving/not giving CPR. It was insane.

Even having asked this question may have added to your potential legal exposure.

Welcome to life by litigation.

Once again talk to a lawyer.

And also both of the above posters seem correct to me.

But that said, IF they do sue you for breach of contract AND the primary elements of the non-compete do hold up in that suit, then I can almost guarantee that the actions of "creating a game in your spare time" would be a violation of the agreement IF AND ONLY IF the product created by these efforts would itself be seen as "competing" in violation of the contract.

In simpler terms, if you are working on something that would violate the agreement to the court, then you are violating the agreement. Otherwise, you are not.

Thanks guys, anyone in europe like to comment on european law as i am based in europe and i know the laws are less restrictive on employees here. I think i will hold off until the 12 month non compete expires just to be safe / and speak to a lawyer.

It's best to wait until your non-compete clause expires. Anything competitive that can be proven to have been developed whilst your non-compete clause is active is a major vulnerability for you, should your previous employer view your project as enough of a threat to do something about (or just want to make an example of you).

You'll also find your NDA will specify 'sensitive information' as protected, which can include market demographics and other concept-to-market targetting information. Any similar development (using the same demographic) can potentially be viewed as provision or exposure of that sensitive information (ie a breach of the NDA) and could attract the attention of your previous employers.

Check your contract *very carefully* and check your NDA too.

EDIT: Although I will echo everyone else- you *must* talk to a lawyer.

Hadn't thought of that, thanks again all.