Law and Practice
- Elgar Intellectual Property Law and Practice series
Chapter 4: TRADE SECRETS AND BUSINESS TO BUSINESS RELATIONSHIPS
In this age of global commerce and the transnational operation of companies large and small, the relationships between companies and their business partners has taken on greater importance from a trade secret perspective. This is because unless a company prefers to keep most of its business operations in-house, it not only has to worry about its own trade secret practices but also the trade secret practices of all companies with which it does business. While this generally requires trade secret owners to establish obligations of confidentiality with every company that is given access to its trade secrets (including, possibly, all companies in its supply chain), for offshore relationships it also requires companies to understand how those obligations of confidentiality are formed and are likely to be enforced in other countries. As discussed in Chapters 2 and 3, with respect to both Article 39 of the TRIPS Agreement and the Uniform Trade Secrets Act (UTSA), the breach of a duty of confidentiality is one of two predicates to liability for trade secret misappropriation, the other one being acquisition by improper means. The existence of a duty of confidentiality is also an important factor in determining whether a trade secret owner engaged in reasonable efforts to maintain the secrecy of its information. Thus, it is essential that trade secret owners establish an obligation of confidentiality with their business partners before sharing any trade secret information.
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