By properly exploiting trade secrets, marks, and copyrights, your company can obtain enforceable rights immediately, inexpensively, and informally. When the potential risk-adjusted returns justify the costs, your company can seek to supplement and complement those rights via patenting, mark registration, and copyright registration.
For example, by identifying and reasonably securing the confidentiality of a new discovery or concept, you can immediately protect and maintain that information as a trade secret. For any given trade secret, which secrecy measures are considered reasonable often depends on the context, such as industry practices, the value of the secret, and the costs to secure it. Generally, however, the following measures are commonly implemented to protect trade secrets:
- explaining the company’s trade secret policies in writing to all relevant audiences (e.g., employees, contractors, partners, etc.);
- including a confidentiality obligation in all relevant agreements;
- avoiding improper exposure to the trade secrets of competitors;
- memorializing trade secrets in writings marked as “proprietary and confidential”;
- limiting and tracking access by employees, contractors, and partners to the company’s trade secrets;
- screening potential disclosures, such as via plant tours, speeches, publications, and electronic device and network vulnerabilities;
- preventing public access (both physically and electronically) to the company’s trade secrets; and
- conducting exit interviews with departing employees.
Similarly, a new mark (e.g., trademark, service mark, etc.) can be instantly protected simply by using it properly and designating it with the TM (or SM) indicator. To obtain broader and more powerful protection, the mark can be federally registered at the desired time.
Likewise, a new creation (work of authorship, such as a training manual, diagram, chart, software, sales brochure, magazine ad, radio ad jingle, photo, website content, graphical interface, training video, etc.) can be immediately protected by providing proper copyright notice, and followed later by formal copyright registration.