Trade Secrets

You can protect valuable commercial information (for example, customer lists or pricing) as a trade secret. Trade secrets are great because you do not “register” them with any governmental agency. They can last forever or as long as you keep them as secret.

In order to convince a court to bar another from using or disclosing your or your company’s confidential information, your company will have to demonstrate to the court: “(1) that it possessed a trade secret, and (2) that the defendants used that trade secret in breach of an agreement, confidential relationship or duty, or as a result of discovery by improper means.”

Courts consider the following factors to determine whether given information is one’s trade secret:
  • the extent to which the information is known outside of his/her business;
  • the extent to which it is known by employees and others involved in his/her business;
  • the extent of measures taken by him/her to guard the secrecy of this information;
  • the value of the information to him/her and to his competitors;
  • the amount of effort or money expended by him/her in developing the information;
  • the ease or difficulty with which the information could be properly acquired or duplicated by others.

We have helped clients to adopt a comprehensive and cohesive policy for trade secret protection, so that our clients ensure that their expertise, know-how and hard work will be recognized as trade secrets in the first instance, and that those trade secrets are protected from inadvertent or unauthorized disclosures through the efforts of an informed, well-trained, and trade-secret-aware staff.

The more diligent you are in setting up and implementing a trade secret program, the more successful you will be at protecting trade secrets and the easier it will be for a court of law to rule in your favor in any litigation arising out of trade secret protection.

We also help inventors to protect their inventions (initially or certain aspects of inventions) as trade secrets. Your idea is “protected” by keeping it secret or by obtaining such legal protection as may be available under the law. Being the originator or inventor does not of itself carry the right to exclusive ownership of an idea.

While the idea remains secret, it can be guarded and disclosed only to persons who previously have promised not to use or disclose the idea without your approval. A specific written contract (a so-called “Confidentiality Agreement”) is preferred for this purpose over an oral agreement or understanding, the terms of which may be difficult to prove.

An agreement that promises confidentiality only binds the parties to the agreement. It cannot bind third parties who may independently develop a similar idea or find out about the idea innocently. If an inventor intends to publicize his or her idea, for example by marketing a product embodying the idea, secrecy will be lost. Under such circumstances a confidentiality agreement is useless. Unless the inventor or originator has obtained exclusive rights under the law, he or she has no right to stop competitors from selling a similar product.