A successful business generally leverages some form of unique selling point (USP), which is likely to be kept secret from competitors to maintain a competitive advantage.
These pieces of information are known as trade secrets, a form of intellectual property (IP).
A trade secret can be any confidential business information that provides a competitive edge.
This could include formulas, practices, designs, instruments, patterns, or any information that is not publicly known and where efforts have been made by the business to keep it secret.
You’ll have come across trade secrets in the news, and some brands even make ‘secret recipes’ part of their brand identity. Some of the most famous examples include:
Trade secrets are used across a wide range of industries, from food and drink to technology, and serve as an integral part of a company’s intellectual property portfolio.
Protecting trade secrets is particularly important for businesses which rely on them for their main offering and revenue source. Once they are lost, it is very difficult to keep them private again, often resulting in the loss of a valuable asset.
How are trade secrets protected?
Trade secrets are generally protected through a combination of legal agreements and internal policies by the business which has developed them, for example:
Any legal agreements designed to protect trade secrets must be precise and tailored to the specific type of information protected to ensure that your business is fully covered if a secret is released – as those contravening these agreements can be pursued for breach of contract.
Challenges to enforcement
Unlike patents, trade secrets do not require registration, meaning there is no formal record of the information considered a trade secret.
This can make it difficult to prove that specific information was confidential and proprietary to the business if a dispute arises without explicit contractual agreement.
The reason that many businesses choose not to obtain a patent on a specialised recipe, process or procedure is that all patented information is publicly available.
While it is possible to take legal action against anyone who uses your invention without your permission under a patent, it doesn’t protect the secret itself.
This is particularly significant for multi-national businesses where trade secrets often cross borders and jurisdictions, which can complicate enforcement.
How can we help?
We can advise you on the best approach to protecting your intellectual property and maintaining your business’ competitive advantage.
Trade secrets can be highly valuable but difficult to navigate due to the potential losses if they are exposed accidentally or through breach of contract.
We understand this and can help you legally protect your intellectual property through confidentiality agreements and NDAs.
In the case where a trade secret may have been unlawfully disclosed or used, we can guide you through your options for legal action, including obtaining an injunction or raising a dispute over a breach of contract.
For more information on how we can help you and your business, please contact our expert Litigation team today.
