Trade Secrets

twobirds.com

Key points

● Trade secrets can be protected even if there is no protective contract provision

● Not all non-public information can be protected as confidential information

● An employee can use his know how and general skills freely when he leaves employment

● Most confidential information is now stored in electronic form; electronic data leaves a lasting record ● The most common remedy to protect trade secrets is an injunction

● A springboard injunction may be available to prevent use of confidential information

● Stealing confidential information can be a criminal offence in some countries

● An information management process will support enforcement

● Protection of confidential information is enhanced by maintaining proper systems and procedures Tips

● Prevention is far better than cure; implement and maintain an information management protocol

● Map data entry points, and manage how confidential information is received, stored, accessed,

disclosed, and destroyed

● Sensibly identify what is, and what is not, confidential information

● Sensibly identify who has access to confidential information, and implement measures to restrict access by others

● Use available IT methods to monitor use of thumb drives, or use of personal devices or IT in

connection with confidential information ● Ensure the employer has the right to monitor use of IT systems on a fair and reasonable basis

● Remind employees regularly of duties relating to confidential information, and always when an

employee resigns

● Gather proof and evidence promptly (and ideally while the employee is still employed) before making demands arising from an alleged breach

● Consider notifying a new employer of confidential information that an employee may have taken

Traps

● Having policies that are not maintained or enforced

● Only considering protection of confidential information after a breach ● Confusing know how with confidential information

● Not acting quickly to forensically gather IT evidence of breach

● Not acting quickly while the employee remains employed