Trade secrets are one of the strongest forms of intellectual property protection you can have. They can conceivably last forever, whereas copyrights and patents have time limits. However, the one weakness trade secrets have is that they take much more work to maintain. 

If your business requires a trade secret to maintain its operation and success, you need to make sure you understand how to properly protect it and avoid any leaks. The trade secret attorneys at Emerson Thomson Bennett can help you.

What Happens When Trade Secrets Leak?

If your trade secret leaks, you may not have it anymore. ‘Secret’ is in the name, and when a trade secret is no longer a secret, you no longer have any rights to the IP beyond the length of a copyright or patent. Some trade secrets cannot be protected by a copyright or patent, so you may lose ownership altogether. This doesn’t mean you can’t still use it, but others can use it as well.

7 Ways Your Trademark Can Leak to the Public

  1. Employee Misconduct: Disgruntled employees – former and current – have been known to disclose trade secrets out of spite and personal gain. Some employees are simply careless in casual conversations and on social media. To avoid this, have your employees sign non-disclosure agreements, or NDAs, and remind them of their NDAs semi-regularly.
  2. Weak Security Measures: While it is illegal for someone to hack into your infrastructure and sell your information, people will try to do it. For this reason, it’s important to have strong cybersecurity measures in place that won’t leave you vulnerable to hacking and data breaches. The same could be said for physical security. People should not be able to access your trade secrets through unlocked offices and unshredded documents.
  3. Insider Threats: While illegal, competitors may use corporate espionage to infiltrate a company and steal your business’s trade secrets. Third-party vendors that you work with may not have the same security or oversight that your company does while handling your trade secrets. Make sure you inquire about your partner’s security capabilities.
  4. Legal and Regulatory Disclosures: When a regulatory body with the government requires you to disclose detailed information about your trade secret, someone else can access it. Avoid needing to submit your trade secrets to regulatory bodies by following the letter of the law. Avoid lawsuits as well, as they may require you to disclose your trade secrets in government records.
  5. Accidental Exposure: Protect your company equipment, such as laptops, smartphones, and USB drives. They can be easily stolen or lost and likely contain sensitive information. Make your company equipment trackable or use software to control your devices remotely.
  6. Insufficient Training and Awareness: NDAs are not enough to keep employees from revealing sensitive information. You need to properly train them and give them clear guidelines on how to protect your trade secrets.
  7. Reverse Engineering: Competitors and customers can legally purchase a product to reverse engineer it. With this in mind, if your product in itself is the trade secret, there isn’t much you can do. It’s best to make a product using your trade secret to make reverse engineering it difficult. 

To mitigate these risks, you need to implement stringent security protocols, conduct regular training sessions for employees, and establish clear policies regarding the handling and protection of confidential information.

How Do You Know Your Trade Secret Has Officially Leaked?

A trade secret is no longer a secret under several conditions, including:

  • Public Disclosure: Once your trade secret is publically known or easily accessible, it can no longer be considered a trade secret. Even if it became publicly known through illegal means, it cannot become a secret again. 
  • Independent Discovery: With trade secrets, you always run the risk of someone discovering what you have independently. You can’t legally stop someone from discovering the same trade secret you did. While you can both maintain a trade secret together, you cannot force another party to reveal their discovery if they wish to.
  • Reverse Engineering: If someone lawfully obtains and reverse engineer your product, they can legally release that information, destroying your trade secret protection.
  • Loss of Economic Value: If your trade secret has no economic value, you cannot enforce its secrecy. To be considered exclusive or confidential, your trade secret has to have some value.
  • Failure to Maintain Secrecy: If your business never takes any steps to maintain your trade secrets, then it’s considered an open secret. This means that you have allowed it to become publically available, but the wider public has not realized it yet.
  • Legal Disclosure Requirements: Sometimes, laws or court orders may require you to disclose your trade secret. An example would be a regulatory filing or litigation, which can lead to the loss of its secret status.

Contact the Trade Secret Attorneys at ETB Law to Ensure Your Trade Secrets Are Protected

One leak can destroy your business’s privacy and threaten its ongoing success. Ensure that your business is doing everything it can to protect itself from trade secret leaks. Though, no one expects a business owner to be knowledgeable about intellectual property law. That’s why one of your first steps should be to contact an experienced IP attorney who knows exactly what you need to know and do.

Emerson Thomson Bennett has the experience and knowledge that your business needs to ensure your secrets remain safeguarded. We’ll help you maintain and protect the secrets that allow your business to be successful. Contact us today to schedule a consultation.

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PRACTICE AREAS WE CAN HELP WITH

We provide complete intellectual property representation to business owners, inventors and artists in all matters related to the establishment and protection of domestic and international patents, trademarks and copyrights. Attorneys at our firm also serve as in-house IP counsel for companies whose needs do not call for a full-time internal position.

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