Friday, May 10, 2013

To be a trade secret, information must derive independent economic value.

Previously, I wrote about the necessity of using a trademark in commerce for it to be a valid mark. Without using a mark on or in connection with goods or services, you do not have a trademark; you only have a creative design, phrase or name. Concomitantly, someone could use it on or in connection with goods or services, and own all the rights to it as a trademark. It does not matter if you were the creative genius behind the mark.

By definition, trade secrets cannot be used on or in connection with goods or services. But they do need to derive independent economic value from not being generally known or readily ascertainable by proper means. In other words, they need to make you money and give you a competitive advantage over competitors by virtue of their secrecy.

A trade secret can be any information in the form of a formula, pattern, compilation, program, device, method, technique or process. This includes recipes, business secrets, and even business experience gained from one company that inevitably must be relied upon when going to work for a competitor. Not all of the latter qualifies as a trade secret, but in some cases it can.

To protect your information as a trade secret, it must be kept secret. Even if the secret is wrongfully divulged by a competitor or disgruntled employee, it still loses its status as a trade secret. If this happened, you could seek damages from the wrongdoer, but these would probably still pale in comparison to what you might make in the long run had the secret not been divulged.

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