Disclosure of secret information

A considerable amount of commercial competitiveness of an enterprise can be due to information developed and accumulated by that enterprise or individuals in it. For example, the customer and potential customer lists could

give that company an edge over its’ competitors who do not have such good quality lists. Another example could be that an enterprise has developed a secret industrial process, which enables it to sell a better quality or cheaper product. I hope you agree with me that if either of these pieces of information were given to a competitor without the permission of the owner of the information this would result in unfair competition. Indeed, the disclosure of secret information is defined as unfair competition by the TRIPS Agreement of 1994, which obliges World

Trade Organization members to provide protection for “undisclosed information”. The TRIPS Agreement specifically describes the protection of undisclosed information as necessary to protect against unfair competition (Article 39 (2)).

Audio segment 5: Why can’t patent protection be used to protect such secret information?

Competitive strength usually depends on innovative techniques and accompanying know-how in the industrial and/or commercial field. However, such techniques and know-how are not always protectable by patent law. Firstly, patents are available only for inventions in the field of technology and not for innovative achievements concerning the conduct of business, etc. Moreover, some technical discoveries or information, while providing a valuable commercial advantage for a particular trader, may lack the novelty or inventive step required to make them patentable. Furthermore, while a patent application is pending, as long as the information has not been disclosed to the public, the owner of the information to be patented ought to be protected against any wrongful disclosure of the information by others, regardless of whether or not the application eventually leads to the grant of a patent.

SAQ 7: Which of the following could be considered as information suitable for protection under the TRIPS Agreement?

The recipe for a soft drink

The information in an expired patent

The information in a yet to be awarded patent

A company accountancy practice

A list of customers

SAQ 7 Answer

Only No. 2 could not be considered as a trade secret as the information in the patent has been published and is in the public domain and can be used freely after the expiry of the patent.

Taking undue advantage of another’s achievements

The notion of “free riding” has a number of common features with the notions of causing confusion and misleading. It could be defined as the broadest form of competition by imitation. Under the principles of a free market, however,

the exploitation or "appropriation" of another person's achievements is unfair only under specific circumstances. On the other hand, acts that cause confusion or mislead normally imply free riding on another person's achievements, but are generally recognised, as forms of free riding that are always unfair. There are various types of free riding including the dilution of the distinctive value and quality of a competitor’s mark. This could happen if a similar mark is used for dissimilar goods or services.

Date: 2015-12-17; view: 650