PROTECTION OF TRADE SECRETS IN NIGERIA

PROTECTION OF TRADE SECRETS IN NIGERIA

Trade Secret is an aspect of intellectual property that seeks to protect the know-how of a particular trade towards enhancing such trade and commerce. In simple terms, a trade secret is any information that allows you to make money because it is not generally known.

The United States of America’s Uniform Trade Secrets Act defines a trade secret as any information, including a formula, pattern, compilation, program, device, method, technique or process, that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means, other persons who can obtain economic value from its disclosure or use. Simply, a trade secret is valuable because it is kept secret.

The question then comes, why should trade secret be protected? Or in other words, why protect trade secret be protected? Or in other words, why protect trade secret when it is in fact a secret? The World Intellectual Property Organisation (WIPO) posited three rationales for the protection of trade secret. They include:

1. To maintain and promote standards of commercial ethics and fair dealing;

2. To provide an incentive for businesses to innovate by safeguarding the substantial time and capital invested to develop competitively advantageous innovations, both technical and commercial, and especially those that are patentable or do not merit the cost of patenting, and;

3. To prevent competitors from using these innovations without having to shoulder the burden of costs or risks faced in developing innovations.

One of the major ways of protecting trade secrets in Nigeria is through confidential/non-disclosure and non-compete agreements. The employer/licensor of the trade secret may execute a confidential/non-disclosure agreement with every employee and contractor of the business, most especially those exposed to or who come in contact with and may have knowledge of such trade secret. A non-compete clause may also be included in the employment or service contract to protect the interest of the originator of the trade secret, in the event of disengagement by resignation or dismissal from service.

Furthermore, it is important to consider whether the secret is patentable and if so, whether it would not be better to protect the trade secret by patent.

Here are the practical approaches to deploy in order to protect one’s trade secrets:

1. Letting only few people in the organisation know the trade secret and making them aware of its confidentiality;

2. Marking all records going out of the organisation as “confidential” or “Top Secret” with stamp or watermark;

3. Ensuring all computer works are secured with passwords to restrict indiscriminate electronic access;

4. As said earlier, ensuring all employed staff sign confidential agreement with employer;

5. Also, there should be professional training and retraining of staff on confidentiality;

6. Discarded information has to be destroyed and shredded;

7. There should be restriction of document or part of building against visitors or staff who are not allowed to access such document or part of the building.

In a situation where there is breach of a duty or obligation to protect trade secret, there are two most important remedies which include damages and the equitable remedy of injunction.

In conclusion, the need to protect trade secrets in Nigeria cannot be overstated. Therefore, it is necessary for the stakeholders, both governmental and non-governmental to ensure there is strong legal framework to further protect trade secret towards encouraging innovations and developing the economic sector of the country.

NB: This article is not a legal advice, and under no circumstance should you take it as such. All information provided are for general purpose only. For information, please contact chamanlawfirm@gmail.com

WRITTEN BY CHAMAN LAW FIRM TEAM

EMAIL: chamanlawfirm@gmail.com

TEL: 08065553671, 08024230080