Protecting Unregistered IPRs
While the best option to protect your IP rights is by registering them at a national, regional and international level, there are some IPRs that cannot be registered, and yet can be protected. Trade Secrets and technical know-how4 are probably the most important for your business.
Trade-Secrets, as the name suggests, are the secrets that you use in your business. Unlike patents, trade secrets are not registrable with an IP office, yet they are protected. Generally, protection of Trade Secrets is provided by specific laws, or within the domestic IP laws. Other times, courts protect them under Unfair Competition law, Torts or on the basis of Principle of Equity, etc.
Examples of trade secrets include:
- Business information (e.g.: information relating to customers and suppliers, their names, addresses, contact details, preferences, buying records, contractual agreements, databases and compilations);
- Strategic information (e.g.: special techniques for marketing and for providing after-sale services, results of market surveys, market intelligence reports, training materials);
- Technical information (e.g.: tests results, quality control methods, products specifications, manufacturing information, research results, etc.);
- Financial information (e.g.: sales data, pricing lists, pricing information, financial forecasts).
From the above list, it is evident that trade secrets are extremely important and valuable for the operations of any company and play a fundamental role in their success. After all, patented inventions often require knowledge of Trade Secrets in order to be effectively operationalized. Similarly, the sale of products or services carrying a trademark and/or embodying an industrial design will be more successful if the relevant Trade Secrets are applied.
You need to keep in mind two things to protect your Trade Secrets:
- First and foremost, by definition, keep them secret, taking whatever reasonable precautions that may be necessary, and
- Secondly, Trade Secrets should essentially be of commercial significance to your business, precisely because they are not known to your competitors.
While protection of Trade Secrets does not cost any money, the main problem lies in the fact that their protection will only endure as long as they remain secret. If somebody, without violating the law, notices your products on the market and succeeds in understanding your precious secret and confidential information (which are not protected as patents or designs), you cannot then claim that your rights have been breached. In other words, you can only use your Trade Secrets against somebody acquiring them through an abusive or illegal act. In such event, you can approach the court to obtain an injunction against the infringer, and claim damages.
This means that you will need to be judicious in deciding the extent to which you need to expose sensitive information in the context of the commercialisation of your products — how and where is the information recorded and stored, who has access to it, what information is made available on your website, who has access to protected passwords, what protocols are in place for the reproduction or copying of such material, and such like. In short, do not use Trade Secrets to protect your main inventions!
See Handbook on IP Commercialisation, Section C.1 on Non-Disclosure Agreements, which are undoubtedly excellent tools to protect trade secrets.
 The term “know-how” can be understood as a type of trade secrets, to cover issues of less strategic value, such as training materials, simple ways of operating machines or contacting customers, etc.
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