The biggest slip you can make with a trade secret would be to relax with your business secrecy protection, even if you have the NDA on site. As in previous case law, the Tribunal also held that the information at issue would only be considered trade secrets if the applicant had taken appropriate steps to ensure his confidentiality, which, in the Tribunal`s view, should not contain excessively costly measures, but simple measures such as, but not limited, advising workers on the essentials of business secrecy. , and limiting access to it by using a “need to know” basis. With the duration of the agreement being only two years, the defendant was free to apply the above practices after the expiry of that period. Thus, the court decided that the applicant is not entitled to a high probability of success of his embezzlement. Examples of clauses in Coca-Cola`s confidentiality, non-competition and non-advertising agreement, which provides two distinct definitions of what is considered “confidential information” and what is considered a “business secret,” should not apply when it comes to trade secrets. Don`t let privacy exclusions eviscerate your business secrets. Most DRAs have some exceptions to the definition of confidentiality, for example. B if the unveiling party agrees to disclosure.
However, other exclusions may be more problematic, for example. B when the information is publicly available or is publicly available for the duration of life. Always ensure that any exclusions that refer to the public domain will contain a qualifier that guarantees that such disclosure is made without fault of the recipient. Take the time to determine whether the exclusions mentioned apply to the circumstances of the NDA, and then work with the other provisions to reflect not only confidential information, but also trade secrets. In short, the expiration of an NOA may have the effect of terminating the trade secret status of all the information it lists. Since trade secrets can potentially last forever, an NDA covering trade secrets should generally impose confidentiality or non-use obligations that extend indefinitely (and require the return of trade secrets after the end of the NDA). When the NDA also collects information that is simply confidential but does not increase to the level of a trade secret, it may be necessary to limit in time any restrictions on confidential data in order for the agreement to be applicable. In this case, the NDA should establish a permanent obligation with respect to trade secrets and a time-limited obligation with respect to confidential information. Disclosure parties are often reluctant to assume incriminating responsibility for identifying their confidential information, following conversations with emails to confirm confidentiality, etc. In return, receptive parties often object to “knowledge” restrictions, logging obligations of derivative works, and the need to delete their files at the end of a relationship. But measures like this will pay off for the owners of trade secrets, if they ever have to assert their rights, including against someone other than the contractual consideration.