Trade secret protection offers a powerful tool for businesses and entrepreneurs to use to protect their valuable, confidential commercial information. There is no filing process, and you don’t need the approval of any government entity to protect these rights. These rights arise automatically. But there is a catch: your trade secrets are protected only if you take reasonable steps to ensure that they remain confidential.
What you need to do to demonstrate that you have taken reasonable steps is not always clear and will likely vary depending on how valuable the asset is. Here are some sensible steps (with the help of some fun movie quotes) that you should take to preserve your trade secrets.
“You Better Lock It Up” – Wedding Crashers
One of the most obvious steps you need to take is to take reasonable steps to lock up physical copies of the trade secret. One easy step to take is to store any physical copies of all your trade secrets in a single file cabinet that you keep locked. Ideally, that cabinet would then be within an office that is only accessible to a limited number of people.
There is simply no reason to keep any physical copies of trade secrets out in the open except when you are actively using these documents or other items. Regardless of whether this will result in you losing your legal protection, leaving these documents out and available for prying eyes increases that chances that you might have to incur the cost of a legal proceeding to enforce your trade secrets.
“My Voice Is My Passport, Verify Me” – Sneakers
I’m perpetually amazed that people in this day and age have computers, smart phones, and tablets that are not password protected. If your computer, tablet, or phone is not password protected, you should stop reading this right now and set up passwords. Seriously, this post will still be here once you are done.
Beyond using passwords to protect your devise, use passwords to limit access to online services and any external storage devices. If your computer is protected, but you have an unencrypted flash drive sitting around with the information on it, you haven’t achieved much.
Although it should go without saying, don’t have your passwords written down on a piece of paper sitting on your desk. With the ballooning use of online services and passwords, it can be hard to keep track, so I certainly understand the need to keep a record of your passwords somewhere. But why not keep them in a document on your computer that is protected by an ultra-strong password that you use only to protect that file.
“You’re On A Need To Know Basis, And You Don’t Need To Know” – The Rock
As an entrepreneur, you are probably pretty good at segmenting your audience, prospects, and leads to make sure they get the right information. You need to take a similar approach with who has access to your trade secrets. You should create buckets for your trade secrets and only let the people who need to know the particular trade secret have access to the information.
Your sales team likely does not need to know the secret sauce of your products or services. Similarly, your product development team does not need to know your sales-related trade secrets (including lists of sales leads).
“Non-Disclosure Agreement. Aren’t You Gonna Read It?” – Spy Game
Anyone who gets access to your trade secrets should sign an agreement that includes a non-disclosure clause before they get access to the information.
Your company should have written agreements with all employees and independent contractors that include non-disclosure agreements. Using written agreements with employees and contractors has a number of other advantages, including defining who owns any creative works or innovations and ensuring they can’t claim an ownership interest in your business. But one of the primary advantages of written agreements with employees is the ability to limit their ability to share confidential information.
Your company should also use non-disclosure agreements with any third party who will be given access to confidential information. As an example, if you run an SEO company, you should not share any of your “secret” approach with a potential client, until there is a non-disclosure agreement in place. These types of non-disclosure agreements are commonplace in the marketplace, and your company should employ them consistently.
By taking reasonable steps to protect your confidential information, you can ensure that your trade secrets remain protected. Your intellectual property attorney can help you decide and implement the proper steps to keep your trade secret a secret and out of the public domain.