By Eloghene Adaka, Esq.
Do you know trade secrets are very fundamental to Businesses ,they can be qualified as the brain box of a business which complements and strengthens other Intellectual Property rights a business owns and Assets. This article shall give an insight into what a business can qualify as a trade-secret and how they can be protected under the law .
Trade secrets refers to information which are of commercial value and not generally known or ascertainable to the public which imparts value to its holder and gives a business its uniqueness or advantage over its competitors . In determining what can be qualified as a trade secret The Trade and Related Aspects of Intellectual Property Agreement sets out 3 requirements under Article 39 of the Trips agreement for an information to qualify as a trade secret and they include
- Such information must be a secret and is not publicly known
- Such information must have a commercial value because it’s a secrets
- The information has been subject to reasonable steps by the rightful holder to ensure it’s kept a secret.
Examples of information which could qualify as trade secret and capable of receiving protection includes ,marketing and business plans , manufacturing methods , formulae and even a business internal cost structure , computer codes . A very practical example of a trade secret can be also seen with the secret recipe of coca- cola which gives it its distinctive quality .
How can Trade secret be protected in Nigeria
In Nigeria , unlike other jurisdictions such as the United States of America which has a law known as Uniform trade secrets Act , there is no law or legislation which provides for the protection of information which can be classified as trade secrets , however in the absence of any law providing for a trade secret , contracts can be entered into to prevent any party from divulging information which can be qualified as trade secret to the public . As it relates to trade secret the protection of information can be achieved through a CONFIDENTIAL and NON DISClOSURE Agreement
A confidential or non-disclosure agreement is a legal agreement between parties who wish to share confidential information between themselves by forbidding either party to disclose an information or even preventing just a party from disclosing an information and creates a confidential relationship between parties whereby they agree to protect confidential and proprietary information . In addition to an NDA agreement other practical steps can be taken to keep such information a secret such as encryption of such information , storing in a place not easily accessible to members of an organization and even pass-wording such information.
In the absence of a confidential and a non-disclosure agreement , trade secrets cannot be protected in Nigeria , and a person cannot be held liable for putting such information out to the public as no agreement was reached . However in course of employment even where there is no express agreements , an employee has a duty not to disclose disclose confidential or trade secrets of his employer to an unauthorized organization of person or any information about information about an employer business that can be used by a competitor to a business in the Course of employment .
Some reasons business owners should have trade secret and protect them by drafting a non disclosure agreement include
1. To ensure product safety
2. To ensure the uniqueness of their product.
3. to ensure Business security
4. Also to maintain a competitive advantage over competitors
