Law Office of David MacTavish, LLC

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Trade Secrets

Some intellectual property isn't protectable or registrable because it doesn't fall under the copyright, trademark, or patent laws. These matters may include subjects like chemical processes, manufacturing systems, and even customer lists and methods of operation. Some matters might be registrable but business owners decline to do so for a variety of reasons: Owners may view the copyright or patent application process as taking too much time or too being expensive. Copyright and patent applications reveal the nature of the registered work and thus allow competitors to use the information before the registration expires. There is, however, another way to protect some kinds of intellectual property.

A trade secret is any confidential information that provides a business with a competitive advantage. A trade secret, therefore, must be commercially useful and its value arises out of its usefulness. That is, the more useful a trade secret is, the greater value it generally has. A trade secret implies at least minimal novelty because that which lacks novelty is generally known by others, and it must have some level of utility. Manufacturing processes and techniques, formulas of all kind including for food, cosmetics, and drugs, as well as customer lists, marketing, advertising, and other business plans have all been held to be protectable trade secrets.

Business practices must continually safeguard a firm's trade secrets, and those practices must conform to the requirements of the law. When employees or other persons may be exposed to confidential information a duty must be created in those persons to maintain secrecy, and steps must be taken and maintained to prevent improper acquisition of secrets by strangers, or your right to maintain your trade secret may be lost.

One disadvantage of trade secrets is that if the trade secret exists in a product that can be reverse engineered, and the product is released to the public, the secret cannot be protected.

When trade secrets have been improperly appropriated remedies may include monetary damages for the trade secret owner and injunctions against the infringer to terminate use of the trade secret information or prevent communication to others, as well as possible criminal penalties.

The Law Office of David MacTavish, LLC can review your business operations and help develop a program of effective trade secret protective measures as well as help you enforce your trade secret rights that might have been infringed. Give us a call and let's discuss your situation.