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How is it determined if something is a trade secret?

As a business owner in California, your trade secrets are protected intellectual property just like trademarks, copyrights and patents. However, identifying one can be much trickier than doing so with the others. The basic definition, according to the U.S. Patent and Trademark Office, is intellectual property that gives an edge to your company over others in the same industry. It can be a formula, such as a special recipe for a food item offered exclusively at one franchise, a pattern or a compilation of information. Processes, techniques, methods for creating a unique product or service and devices may also be trade secrets.

Above all else, a key point about your trade secret is that it has to be kept confidential. You must take specific measures to keep it from being known by anyone other than those you have granted the right to. Once this confidential information is well-known, the protection is gone. If you are able to keep it confidential, then you retain protection. There are no time limits like you would have with a patent, for example, although patent protection differs in that it lasts even if someone else is able to reproduce the invention independently.

The basic protection offered for your trade secret includes the right to keep it secret. Anyone disclosing the information is violating this protection. This is called misappropriation.  So, if someone you granted access to your intellectual property shares it with someone else, they are engaging in misappropriation, and you have the right to sue them in court. This information is only intended to educate and should not be interpreted as legal advice.

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