Trade secrets, or sensitive information, is information which is not generally known by the public and is perceived to have some commercial value. Trade secrets are commonly referred to as ‘know-how’, ‘sensitive information/data’ or ‘confidential information’. Regardless of the use of these terms, they generally refer to information which if disclosed to a competitor may cause significant harm to your business or company.
Not all information which is confidential will be protected by trade secret laws, the information needs to be central to the functioning of the business or its service/product for it to be protected. Examples of information protected by trade secret laws may include:
Trade secret protection is a valuable concept for businesses as it may remain valid as long as the information is secret. Therefore, trade secret protections can out-last patents and other forms of information protection.
For information to be considered a trade secret, it must meet a number of criteria to be afforded protection. The following elements, if satisfied, will suggest the information can be protected by trade secret laws:
Trade secrets will not, however, cover general skills and knowledge which a person may acquire in the course of business or employment. Therefore, it is important to consider the scope of post-employment restraints where confidential information or trade secrets are concerned.
A number of practical steps can be taken by businesses to ensure their information is considered a trade secret and protected appropriately. More specifically, businesses should try to proactively demonstrate that the relevant information is secret or confidential in some way to all individuals who have access to it. Where a business can show the information was intended to remain secret a Court will more likely determine an obligation of confidence was breached if the information was disclosed.
Where for example an employee or contractor has disclosed a business’ trade secret the aggrieved business may consider commencing proceedings for damages. If a court can be satisfied on the balance of probabilities that the individual misappropriated the trade secret and knew of its secret status, the aggrieved business may be able to recover damages for economic loss. In matters where you want to prevent further dissemination, it may also be appropriate to apply for an injunction including an interlocutory injunction if matters are urgent.
The easiest and most cost-effective way to protect your business’ trade secrets is to have a clear and unambiguous confidentiality clause in all employment/contractor agreements. By clearly setting out individual’s obligations it can reduce the likelihood of mistaken or deliberate misappropriation of trade secrets. It is important for confidentiality clauses to be in all business agreements and to be well-drafted. If you or your business are interested in protecting trade secrets consideration should be given to having a legal professional draft relevant clauses and provide accurate advice.
Proper experience in dealing with trade secrets and confidential information is essential. Aitken Whyte Lawyers are focused on results. Our litigation and dispute resolution team will advise you on the proper course to take if your trade secrets or confidential information has been misappropriated or disclosed without authority.
Aitken Whyte Lawyers can assist you with all matters regarding trade secrets.
Aitken Whyte Lawyers
11/8 Pikki Street,
Maroochydore Qld 4558
Ph: +617 5408 0655
Fax: +617 3211 9311