Guide to Trade Secret Law
Article contributed by Kelly / Warner Law.
You’re a blogtrepreneur. An ambitious word wizard who’s always willing to work harder, longer and smarter.
And your innate ingenuity means you’ve probably created a few procedures and business techniques that have led to success. Maybe you’ve stumbled on a “can’t miss” formula for content conversion. Or, perhaps you’ve uncovered an original, profitable (and legal!) way to track expenses. Whatever the case, your innovation boosts your bottom line — which is why it’s wise to know a thing — or seven — about trade secret law and how it can help protect your genius.
#1: Trade Secret Jurisdiction
Trade secret law is a state, civil law matter. There isn’t a federal trade secret statute. However, nearly every jurisdiction adheres to the Uniform Trade Secrets Act, making interstate disputes manageable. Trade secret laws in the handful of states that don’t use the UTSA are very similar to statutes in states that do follow the act.
#2: How To Win A Trade Secret Misappropriation Case
To win a trade secret misappropriation case, a plaintiff must – at the very least – satisfy the four pillars of trade secret determination.
- Existence: In order to win a trade secret case, plaintiffs must prove that the material in question was confidential and the defendant knew it was confidential.
- Access: A plaintiff must prove that the defendant had access to the material under review.
- Notice: A plaintiff can’t win a trade secret case unless he or she can prove that the defendant knew the information was confidential.
- Use: Claimants must prove that defendants used – and somehow profited from — the trade secret under review.
#3: Registration not required
Legally speaking, the main feature that distinguishes trade secrets from other types of intellectual property protections is freedom. Namely, it’s not required to register a trade secret with the government for it to be actionable. To enjoy the full complement of copyright and trademark protections, registration with the U.S. Patent and Trademark Office is necessary.
#4: Confidentiality Required
Although formal registration isn’t required for trade secrets, to win a misappropriation case, you must prove that the “thing” was a known trade secret within your organization. Actionable confidentiality is most reliably accomplished by making employees sign specific non-disclosure agreements regarding the trade secret.
#5: Employment Status Isn’t Enough
A general employment contract doesn’t automatically serve as a confidentiality agreement that protects trade secrets. An additional agreement is usually needed to win a trade secret appropriation claim. Moreover, without a signed non-disclosure or confidentiality agreement, a judge may rule that a given trade secret, developed by an employee, to be the intellectual property of said employee and not the company.
Kelly / Warner is a boutique law firm that delivers better-than-big-firm results, for a fraction of the price. The firm also maintains a legal blog filled with valuable information for online entrepreneurs. Visit KellyWarnerLaw.com to start exploring legal tactics that will better protect your enterprise, which ultimately aids in profitability and growth potential.