Protection provided by trade secrets
In a competitive market, companies need to protect certain information.
Traditional intellectual property rights may be replaced by trade secret protection. Nevertheless, while the use of trade secret rights seems to have some advantages, the protection it provides has its limitations.
Definition of trade secrets
Trade secrets have no legal definition in France. However, we can define it as information that a company does not wish to disclose to its competitors. This information can be processes, manufacturing formulas or other technical elements that have not been patented.
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For a company,confidentiality agreements with suppliers as well as with its own employees are most generally considered trade secrets.
The use of trade secret rights has certain advantages :
- It can complement or extend a patented invention: the duration of protection is unlimited as long as the secret is not disclosed, making it possible to protect a greater volume of information than in a patent.
- Business secrecy does not require a registration procedure so it can be less expensive than other processes.
Protection conferred by a trade secret
The TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights) which integrates intellectual property rights into the WTO, in Article 39 protects
"undisclosed information" against any unauthorized use "in a manner contrary to honest commercial practices." However, this protection is the responsibility of the French courts.
In the absence of a specific law in France protecting trade secrets, the protection granted depends on the manner in which the third party has obtained the disputed information.
The disclosure, or attempted disclosure, of secret information may, for example, be punishable forbreach of trust, theft of intangible data or violation of computer systems.
Limitations of trade secret protection:
The protection of trade secrets remains limited because it does not confer any exclusive rights. If a third party discovers your secret without fraud, they can exploit it, reverse engineer it and even register it without any infringement claim being possible. For technical innovations, it seems risky to be satisfied with the protection granted by trade secret because nothing prevents a competitor from patenting your invention.
This is why it is necessary to evidence the date of creation of your invention with Copyright registration in order to prevent any infringement.