Last time, we began speaking about the importance of protecting confidential business information, whether through trademarking, patenting, copyrighting, and particularly through the enforcement of trade secret protections.
As we mentioned last time, trade secret protection has historically only been through federal courts, but the recently enacted Defend Trade Secrets Act of 2016 offers federal enforcement of trade secrets. The protection offered through the federal law is comparable in many ways to the protections offered by the Uniform Trade Secrets Act, which has been adopted in one form or another by 48 states.
For one thing, the term “trade secret” is defined similarly. Under the new law, a trade secret is any business-related information which the owner has taken reasonable measures to keep secret and which conveys economic value to the owner because of being secret. The remedies available to trade secret owners are similar as well.
Remedies for trade secret misappropriation include things like damages and injunctive relief. Damages can include actual loss caused by trade secret misappropriation as well as unjust enrichment. Injunctive relief may be available for either actual or threatened misappropriation. In some cases, a plaintiff may be entitled to affirmative action to protect a trade secret. In cases where trade secret misappropriation is willful and malicious, attorneys fees may also be available to the plaintiff.
Seeking appropriate relief when a trade secret has been misappropriated is important, but it is equally important for businesses to come up with processes and policies to ensure their trade secrets are not unduly prone to trade secret misappropriation. Working with experienced legal counsel can be a great help in task.
Ipwatchdog.com, “The Defend Trade Secrets Act of 2016 Creates Federal Jurisdiction for Trade Secret Litigation,” Sebastian Kaplan & Patrick Premo, May 23, 2016.
Uniform Trade Secrets Act With 1985 Amendments, National Conference of Commissioners on Uniform State Laws
18 U.S. Code § 1839 – Definitions