Gift Focus - Jan/Feb 2020 (Issue 117)

187 ACID To find out more, visit focuses on, “The protection of undisclosed know-how and business information against their unlawful acquisition, use and disclosure.” This is a real boon to SMEs and a ground-breaking initiative. Why? Because unlike most other types of intellectual property rights, breach of confidence (of trade secrets) is not subject of any specific legislation and so there’s uncertainty. The benefits of the 2016 Directive will mean that existing laws will have legislative certainty and it should help to raise the importance of the protection of business confidences. SME TIPS AND GUIDELINES ON TRADE SECRETS 1. Assess whether your secret is protected by ‘formal’ IP rights. The most common are copyright, trade marks, design right and patents. If so, register or, in the case of copyright, which arises automatically, make sure this is signed and dated. Don’t forget, a significant benefit to ACID members for any trade secrets is to send a copy to the IP Databank that doesn’t add to rights but provides uniquely numbered evidence of the date they are received by ACID. This is critical evidence should it ever be required to challenge anyone who has run off with your secrets. 2. Ensure that there are provisions in your organisation that as few people as possible know about your trade secret and that all that do are aware that it is confidential information. 3. Have a look at your employment contracts and check whether there is a clause about maintaining confidentiality for a period of time, even after the employee has left your company. Know-how is hard to gain and easy to share if not protected by agreements. 4. Never underestimate the strength of signing a confidentiality agreement with business partners whenever you are discussing or disclosing confidential information. Sadly, relationships do go wrong and, if they do, it is much easier to seek legal redress if you can rely on the ‘small print’. Trade secret protection is not limited to time unlike other intellectual property rights and so a trade secret can continue indefinitely if it is not revealed to the public. Look at the recipe for Coca Cola, probably one of the best kept secrets! For example, did you know that the Coke brand is protected by global trade marks and other intellectual property rights. The formula behind making Coca Cola is a fiercely guarded trade secret that only a handful of people in the world know. Whether you are a major PLC or a lone, micro or SME, losing any secrets which give you the competitive edge can be devastating. 5. Also, there are no registration costs involved and trade secrets have immediate effect. There are no formalities such as disclosure to any Government authority. 6. Make prevention of theft of trade secrets a priority. Once a trade secret is disclosed, whilst litigation is available, usually the damage has been done! 7. Do you have a protocol or guidelines on trade secrets within your company? Importance on what can and can’t be disclosed is critical. Always ensure that sensitive documents are stored securely or, if they are no longer required, disposed of by specialist companies. 8. Never underestimate the value of your sales lists and data and put in place measures that will safeguard their confidentiality. 9. Watch very carefully and identify all information that your organisation provides to third parties, a signed confidentiality agreement can be very valuable in not only providing evidence that two parties have signed such an agreement of disclosure but raises awareness with those with whom you are sharing information that you are trade secret ‘savvy’! 10. Limiting physical and digital access to trade secret information should be on a need-to-know basis. Practical and simple tips such as a shredding policy seem common sense but how few do this? There are also many companies out there who will connect sensitive and confidential ‘waste’ and ensure it’s disposed of. Finally, having a trade secret policy is a no brainer. Once in place it can be refined and improved upon and evolve into a real asset to protect the know-how of your business which gives you the competitive edge. If your trade secrets end up in the wrong hands have a proactive trade secrets action plan already in place. Never underestimate that competition is rife and those who seek the fast track to market through others’ trade secrets/know-how are nimble and organised.