What are Trade Secrets?
Trade secrets, also referred to as know-how and other confidential or proprietary information play an important role, particularly in Business.
Trade secrets are typically broadly defined and may include:
An example of a trade secret is the combination of herbs and spices used in Kentucky Fried Chicken.
Information plays an important role across many areas of society and from a Business perspective can be a valuable asset.
Depending on the situation, it might be necessary to keep certain information out of the public domain by maintaining a level of secrecy. For example, the information might relate to:
New products or services yet to be introduced to the market;
Financial details about an organisation;
Business owners seeking to protect their trade secrets when dealing with third parties may enter into a Confidentiality or Non-Disclosure Agreement.
Where a third party (“Receiving Party”) breaches their confidentiality obligations, various remedies maybe available to the affected party (“Disclosing Party”), such as:
Breach of contract:
the remedies for a breach of the Confidentiality Agreement may be set out in the agreement itself, which could include a right of termination of some other ancillary agreement;
damages - a monetary order by the Court to compensate for losses incurred);
injunction - being an order of the Court that a third party cease using the confidential information or take some other action;
An action in common law referred to as “Breach of Confidence”.
In order for the Disclosing Party to avail themselves of the remedies, certain criteria must be met. For example, in a breach of confidence action there are typically a number of elements that the Courts have said need to be satisfied:
the information must have the necessary quality of confidence;
the confidential information was improperly disclosed;
there was a breach of the obligation of confidence;
damage was suffered by the Disclosing Party by the Receiving Party as a result of the breach of confidence.
The circumstances in each case will determine if a breach has occurred and the remedy available.
What We Do
At Greyson Legal | IP we help our clients to protect their trade secrets. We can do this by providing:
Non Disclosure Deeds
Employment Agreements - ensuirng they have appropriate clauses that protect your intellectual property in the hands of your employees
Consultant and Contractors Agreements - helping you protect your trade secrets when dealing with consultants and contractors
As know-how is important to a Business, it follows that appropriate mechanisms should be adopted by Business owners to protect their trade secrets.