Wednesday 12 May 2021
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Keep it to yourself

Keeping information to yourself is seen as a necessary endeavor to protect what is considered valuable. Personally or commercially, secrets have proven to be a worthy means of keeping information away from unwanted parties for different purposes mainly to protect autonomy (the advantage of being the only one with that knowledge) and privacy. Deliberate attempts to keep information away from the masses is done in various ways, for instance, contracts are the most common way of intentionally keeping information hidden.  There will be no whispering about this; secrets are protected as a form of IP. IP presides and is yet again a tool that is underutilized that could have a considerable positive effect on the overall business operations especially with upcoming enterprises.
Information kept hidden for commercial purposes is called a trade secret. Anything that is critical to your trade that is considered unique to your business operations can be protected as a trade secret, examples would include but not be limited to customer lists, recipes or protocols for your products, innovative ways you handle machinery in your operations etc. There is seemingly little limitation to the spectrum of information eligible to be protected by trade secrets. The criteria to ensure a well-kept secret revolve around the means by which the owner of the information wishes to keep it classified and on the basis that the chosen individuals to whom the secret is disclosed are fully aware that access to it is restricted. Trade secrets operate on breach of confidence assuming a contract has been utilized; in this case information is communicated on a confidential basis and maintained in an agreement that it is to be kept confidential. There are other means of deliberate concealment that are not limited to an agreement or contract, in such cases; the traits of breach of confidence are also applied. Other means of concealing information such as safes, encrypted files etc. are treated similarly. Breach of confidence is the disclosure of information to the detriment of the holder or owner that was communicated to a second or third party in confidence with the understanding that it is not for public consumption. Simply put, the disclosure of information that was classified. A breach of confidence is treated as a legal offense. Typically, what is important is that the owner of the confidential information communicated to a party of his/her choosing with the understanding that it is confidential. The holder of the information must prove that he/she communicated the information on the understanding that it is confidential and that the disclosure of such information is to his/her detriment. Unlike other forms of IP, trade secrets do not require registration to be rendered legitimate, however, it should be clear that the onus of the protection rests on the owner of the information.

Trade secrets are a good option of IP especially where limited resources are hindrance to securing other forms of IP. Trade secrets are more accessible to the upcoming business person than patents however, unfortunately, the ease of securing a trade secret is not always as efficient as patents. As previously stated, IP is not always foolproof but ensures a means of remedy in cases of infringement. Additionally, trade secrets can be paired up well with a trademark, which then enables the building of a brand and contributes to the goodwill of the company.
Some of the world’s best-kept secrets that generate large revenues include Google’s algorithm, KFC’s recipe and Listerine’s formula. These companies have mastered the art of combining the use of patents and trademarks with trade secrets. The mystery of the software code, the delicious chicken and the handy cosmetic has acted as the crux of the business modus operandi.
These companies have employed various means to ensure the securing of their information and covered the information in a variety of IP for their benefit. So too, the customer lists, the innovation protocol manual, customer care procedure can benefit our young businesses into crafting a robust IP portfolio.

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