Intellectual Property Law
Trade Secrets Litigation
Trade secret litigation typically takes one of two forms: (1) misuse by a party who originally had legitimate access to the trade secret in which case the litigation usually involves a non-compete or non-disclosure agreement; or (2) misuse by a competitor or other third-party in which case misappropriation, trade secret theft, and/or another form of unfair competition law will apply.
The key to successfully prosecuting a case against one who originally had legitimate access to your trade secrets and other confidential information lies in the contractual documents that prohibited that individual from disclosing or otherwise using your confidential information. These documents included non-compete agreements, which limit the type of competition an individual can engage in once his or her relationship with your company is severed. Courts will enforce such agreements, but do so warily. Courts will only enforce such agreements to the extent that they are reasonable and the restrictions contained in them are necessary to protect a company’s legitimate trade secret concerns. Courts vary on what they consider reasonable. Some factors they look to are the geographic area concerned, the time durations of the protections, and the exact nature of the confidential information at issue. Many times these rules are governed by the case law in that particular jurisdiction. It is extremely important to work with a knowledgeable attorney to perform due diligence and develop a strategy. Your attorney can draft legal agreements that will ultimately be enforced.
Another type of document used in these situations, either separately or coupled with a non-compete agreement, is a non-disclosure agreement. These confidentiality agreements preclude a party from disclosing or otherwise misusing information provided to them in confidence. Such agreements bring their own array of pitfalls to the unwary and inexperienced drafter. For example, it is very important in a confidentiality agreement to adequately identify the information to be protected in order to prove at a later date that the other side breached their agreement.
Sometimes a competitor or other third-party will acquire your trade secrets through improper and illegal means, such as through corporate spying or computer hacking. This is serious business and requires immediate intervention so that your trade secrets do not become widely dispersed and, thus, lose their value. One of the weapons in your arsenal to stop the wide-spread dissemination of your confidential information is to obtain a court injunction to immediately stop such use and through other civil remedies.