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Intellectual property: taking the mystery out of trade secrets

Nearly every small business owner has some form of intellectual property, even if they don't realize it. At the very least, one can register the company's name as a trademark. In fact, your company's name is often its largest asset.

Now that you know that you have at least some intellectual property that you didn't realize you had, you might wonder what else could qualify. Do you know that you probably have trade secrets? Any information you protect from others that contributes to the success of your business might qualify as a trade secret.

Only big companies have trade secrets, right?

No. Your small business could have trade secrets as well. Do you have a list of customers that you wouldn't want a competitor getting its hands on? Then you have at least one trade secret. You can protect this and other information vital to the success of your business that you want to remain secret from these types of exploitation:

  • Someone who gained access to it without permission
  • Someone who knows the information was accessed without permission
  • Someone who vowed to keep the information confidential, but did not

Regardless of how it happened or who was involved, once the information fails to remain confidential, it no longer enjoys the protections of being a trade secret. If applicable, you should consider applying for a patent or copyright because those provide you with more protection.

Uniform Trade Secrets Act

That does not mean that you don't have legal protections for trade secrets. The National Conference of Commissioners on Uniform State Laws outlined what constitutes a trade secret in its draft of the Uniform Trade Secrets Act back in 1970. After amending the act in 1985, nearly every state, including Florida, adopted the act in one form or another. A trade secret includes information such as the following:

  • Pattern
  • Formula
  • Compilation
  • Method
  • Program device
  • Process
  • Technique

The information must derive its economic value from its discreetness. If someone else can obtain the information legally and properly, then it does not qualify as a trade secret. Keeping the information secret must also require certain reasonable efforts. If you accuse someone of using improper means to obtain your information under the act, you accuse them of the following:

  • Bribery
  • Theft
  • Misrepresentation
  • Electronic espionage
  • Breach of duty to maintain the secret
  • Inducing a breach of duty to maintain the secret

If the court agrees that someone improperly obtained your trade secret, you may request the following damages:

  • An injunction
  • Profits
  • Reasonable royalties
  • Other damages

Before you can receive any of these damages, however, you must first establish that you have trade secrets.

Protecting your trade secret

You stand a better chance of doing so if you take the necessary steps to protect it as soon as possible. The first step might be to identify what trade secrets the business has. You might not know whether a piece of information fits into the legal definition, but an intellectual property attorney should. This attorney also knows what legal steps to take in order to protect your information. If someone does misappropriate your information, you already have an advocate in your corner to assist you with receiving the compensation you deserve.

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