Solicitors: confidentiality, trade secrets and non-disclosure: Humphreys & Co.

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Confidential information

Solicitors undertaking claims for injunctions & damages arising from the misuse of confidential information

Solicitors here advise on and generate documentation in relation to the law and practicalities of confidentiality and trade secrets. Our solicitors undertake litigation of claims for injunctions and damages arising from the misuse of confidential information.

Valuable assets do not always come pre-packed. Our solicitors are used to working at the margins of intangible rights, where duties of non-disclosure fade into the public interest in commercial freedom, where hard-nosed dealing borders on shabby treatment.

The ability to take a realistic view of rights and obligations arising from the communication of information is a product of experience. Humphreys & Co. has the experience clients require, whether in documenting agreements or taking injunctive action.

Every business has its secrets. These may range from technical information to customer lists. UK law protects the wrongful use or disclosure of trade secrets by the civil law action of breach of confidence.

Practical steps to protect confidential information

Sign a confidentiality agreement before disclosing confidential information especially relating to prospective patents.
Review contracts with employees and outside contractors to see they contain appropriate confidentiality clauses.
Ensure new employees do not use trade secrets from their previous workplace.
Audit present security arrangements.

Fixed charge package with options and recommendations

Elements of an action for breach of confidence

Case law has established that in order to succeed in an action for breach of confidence, the claimant must show - Coco v. Clark (1969):

The information has the necessary quality of confidence about it.
The information was imparted in circumstances importing an obligation of confidence.
The defendant has made unauthorised use of that information.

What is confidential information?

The information must be secret in the sense of not being generally known and must not be trivial.

Where the material is a mixture of public and private information the court may deem it confidential if it would give a "springboard" advantage over competitors.

Following termination of a joint venture, the defendant was prevented from marketing portable buildings to the claimant's design even though the design had been made public through sales of the buildings and brochures.

What circumstances give rise to an obligation of confidence?

The holder of the information can impose an obligation of confidence expressly.

In the absence express agreement the duty to keep information secret may be implied from:

The surrounding circumstances. In Oasis (1997) a scene was arranged under strict security for a photo shoot to be used as an album cover
Publication of unauthorised photographs was restrained on the basis of breach of confidence in Douglas v. Hello (2007)
The relationship between the parties, for example employer and employee

When is use or disclosure unauthorised?

This is a question of fact in each case. Innocent misuse of confidential information can still give rise to liability � Seager v. Copydex (1967). Exceptionally the defence may be raised that disclosure is in the public interest or in furtherance of the right of freedom of expression under the Human Rights Act 1998.

Remedies for breach of confidence

An injunction prohibiting further use of the information may be obtained (even if the information is in the public domain). The claimant may also ask for damages or an account of profits, and delivery up and destruction of any property containing the information.

Intellectual property at a glance

Patents, trade marks, copyright, designs and trade secrets in their national, EU and international contexts.
Trade marks principally indicate the origin of goods or services. They can be protected in the UK through either passing off or registration. The choices for registration are a UK or a Community trade mark or international registration.
A registered trade mark may afford protection against use of the same or a similar sign for the same, similar or dissimilar goods or services.
Patents confer monopoly rights in inventions. The invention must be new, inventive, capable of industrial application and not excluded.
Patents must be licensed in accordance with the Block Exemption on Technology Transfer Agreements. They may be subject to compulsory licences and Crown use.
Copyright subsists in works not ideas. Related rights include moral rights and rights in performances.
Copyright is infringed by taking a substantial part of the claimant's work. Additional damages are available for flagrant infringements.
Database right subsists in electronic and paper databases if a substantial investment is made in obtaining the contents.
Designs are protected in UK law by registered and unregistered design rights. Community designs co-exist with UK designs laws.
Trade secrets may be protected by a civil law action for breach of confidence. The information must be confidential, imparted in circumstances importing a duty of confidence and the defendant must make unauthorised use of the information.
Intellectual property rights are generally litigated in the High Court. A general pre-action protocol sets out the steps that parties should follow when considering litigation.
Expert evidence can be the key to success in intellectual property cases

Fixed charge package with options and recommendations

Solicitors authorised and regulated by the Solicitors Regulation Authority of England & Wales under no.62944
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