+ The Nature of Trade Secrets
Trade secrets are protectable under two broad legal concepts: tort and contract. Within the area of tort law, two different approaches may apply. The first is based on the concept that a trade secret is a property right so that misappropriation, publication, or unauthorized use is actionable and in some cases criminal. The second is founded on the idea that misuse or publication of a trade secret is an act of unfair competition. The application of these concepts differs from country to country. Ladas & Parry’s long experience in these fields can help navigate them successfully and avoid pitfalls for the unwary.
When relying on a contract to protect a trade secret, one has some freedom to define the secret oneself, subject to any laws outlawing contracts in restraint of trade, such as antitrust laws in the United States. Otherwise, a key requirement is that what is being protected meets the requirement of being “secret.” This does not, however, mean that it must necessarily meet the requirements for novelty in the patent sense. Trade secrets are, in large respects, different from other types of intellectual property because there are no external means for creating, recognizing, or protecting them. While one can file a patent, trademark, or copyright application after the invention or brand is developed, or the art or literature created, protection of trade secrets is in large part a function of identifying the subject and internally maintaining security measures to keep them secret.
Ladas & Parry has worked with clients to identify the subjects that provide an advantage in trade and to develop means, both legal and security, to maintain the secrets. We can also identify business information that is not technology oriented, such as marketing plans. By maintaining the secrets, unauthorized taking is reduced, and if there are breaches, the remedy follows identification of the subject and evaluating the extent of steps taken to keep the secrets. This can include a review of current business practices regarding the storage, use of, and access to business information, as well as the complementary area of appropriate confidentiality (non-disclosure) agreements.