Date: 21 August 2020
Time: 8:00 PM (GMT +1)
Topic: Understanding Trade Secrets and its impact on developing countries.
Anchor: Chubby Obianyo
This is the eighth seminar in the MIPLG virtual seminar series for the personal development of its members. It was held on 21 August 2020 and was anchored by Chubby Obianyo. The seminar started with a brief introduction by the Anchor at about 8:05 PM.
The Anchor introduced the topic, “Understanding Trade Secrets and its impact on developing countries”. He started with the Black’s Law Dictionary definition of Trade Secret as “A formula, process, device, or other business information that is kept confidential to maintain an advantage over competitors; information including a formula, pattern, compilation,
program, device, method, technique, or process”. Thus, any confidential business information which provides an enterprise a competitive edge may be considered a trade secret.
He further gave the provisions of Article 39 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) which provides for the protection of trade secrets.
The TRIPS is an international legal agreement binding on all member nations of the World Trade Organisation (WTO). It sets out the minimum standards for the regulation by national governments of IPRS. The factors that qualify confidential information as trade secrets are highlighted by TRIPS in Article 39 (2) are as follows:
a. It is a secret not generally known to the public;
b. Due to the fact that the information is not publicly disclosed, it must have commercial value;
c. It is the subject of reasonable efforts by the holder to maintain its secrecy.
He stated that trade secrets are protected without registration or any procedural formalities. Thus, unlike patents and trademarks that are registered for a period of time, a trade secret can be protected for an indefinite period, provided it is not disclosed to the public.
He cited the popular trade secrets example of Coca-Cola, rather than patent his formula, the inventor of the Coca-Cola soda, Mr. John Pemberton, decided to protect his recipe as a trade secret. In 1891, Asa Candler purchased the rights to the formula from Pemberton’s estate and founded the Coca-Cola Company. The formula for the Coca-Cola drink has remained a trade secret ever since then. This may be considered as a good business move because if Coca-Cola had patented the formula (which is questionable) it may have been disclosed to the public.
Additionally, he explained how trade secrets can be protected since trade secrets cannot be subject to public disclosure, owners of trade secrets protect them with every means both legal and technological procedures. If the owner of a trade secret intends to disclose a trade secret to a third party, it is advisable that he executes a confidentiality agreement or a nondisclosure agreement (NDA) with the third parties as this may be the only way he may be able to protect his trade secret and prevent the third parties from using his invention or idea.
Other ways trade secrets can be protected include executing non-compete agreements with the employees and keeping the trade secret in a safe location.
He concluded by mentioning the benefits of trade secrets to include the possibility of protection indefinitely as long as it remains a secret and the non- requirement of registration among others. He reiterated that while other intellectual property rights are territorial, trade secrets are not limited by territories and attracts protection where used.
He mentioned that Africa is yet to explore this arm of intellectual property protection.
The session came to an end at about 9:00 PM (GMT +1) with a brief vote of thanks by the Anchor.