A short presentation of on the use, management and protection of trade secrets. For a related blog post click here: http://afro-ip.blogspot.com/2013/04/trading-in-trade-secrets-and-art-of.html
3. Trade Secrets – An Introduction
Requirements:
Information which is
• useful in trade or industry
• kept confidential
• valuable by providing entity with a competitive edge
• includes negative info such as research options which proved ineffective
The definition is broad – whether info qualifies as a trade secret is a
question of fact
5. Trade Secrets – An Introduction Continued
Advantages of Trade Secrets
Trade Secrets Patents
Indefinite protection Limited time frame for protection
No registration costs Procedural costs
Immediate effect against competitors Effective once procedure = complete
and non-competitors
No formal compliance required Must comply with formalities –
disclosure
6. Trade Secrets – An Introduction Continued
Disadvantages of Trade Secrets
Trade Secrets Patents
If the secret is embodied in an
innovative product, it may be reverse-
engineered Exclusive right to exclude third parties
Once the secret is made public, from commercial use
anyone may have access and use it at
will
Difficult to enforce Simpler to enforce, stronger
protection
May be patented by someone else You may patent anything that
who developed the info by legitimate complies with the requirements
means
7. Trade Secrets – Protecting Yourself
Contractual Protection
• Contract of service implies some protection
• Confidentiality
• Restraint of trade
Breach
• Employee furnishes secret to opposition
• Employee uses secret for their own benefit (no clear-cut test)
Remedies
• Claim based on unlawful competition
• Claim for contract
• Interdict, damages and cost
8. Trade Secrets – Protecting Yourself
Protection After Termination
• Two conflicting interests must be balanced: employer v employee
• No concrete guidelines
– Step 1: is it a Trade Secret?
– Step 2: If yes, is use thereof reasonable and therefore justified?
• Employed for specific purpose • Deliberate commitment to memory
• Small contribution • Photocopying material
• Only contributor • Takes material home
• Employed for 25 years • Employee accepts similar job at
• Senior position similar company
• Many similar companies
• Work is in public domain
9. Using Trade Secrets To Your Advantage
Coca-Cola
• “World of Coca-Cola” in Atlanta
• “Vault of the Secret Formula”
• Secret Formula 4-D Theatre
10. Using Trade Secrets To Your Advantage
KFC
•11 secret herbs and spices
•Original recipe chicken
•colonelsanders.com
13. Trade Secrets – Changes to be aware of
Exchange control
• Amendment to the Exchange Control Regulations made under Section 9 of
the Currency and Exchanges Act 9 of 1933 in June 2012
• “Capital” subject to exchange control provisions includes any intellectual
property right, whether registered or unregistered
Workplace Environment
• Confidentiality
• Protectable interests