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Intellectual Property FAQ |
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Trade secrets are a form of intellectual property that tends to derive more from competitors' dealings with one another than from any determination of what a "trade secret" is per se. Non-disclosure agreements, covenants not to compete, non-solicitation agreements, corporate espionage, disloyal employees, etc., may all give rise to a trade secrets issue or analysis.
In general, any such analysis will inevitably implicate reasonableness. Is it reasonable to hold someone to an agreement not to use proprietary information beyond its usefulness, or once it has been broadly used in the marketplace? Is it reasonable to prevent the use of a customer list by a departing employee if the list could be composed by other sources, or from information the employee had prior to his subject employment? Are there public policy or anti-trust issues triggered where a company asserts rights in or to proprietary or confidential information? Is it unfair to let a competitor use what is claimed as a trade secret, or is it more unfair to prevent him from doing so?
As may be expected, calling something a secret does not make it so. Determining what a trade secret is requires a flexible, fact-specific anaysis that results from fairness and reasonableness. In return, such analysis encourages a robust marketplace of ideas resulting from a careful balance of the incentives to protect or allow for the use and exploitation of those ideas.
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Crosby Higgins LLP, 350 Broadway, Suite 300 New York, NY 10013 | Tel: 877-5-BIZLAW or (646) 452-2300 Fax: (646) 452-2301 |
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