A trade secret:
- is information that has either actual or potential independent economic value by virtue of not being generally known,
- has value to others who cannot legitimately obtain the information, and
- is subject to reasonable efforts to maintain its secrecy.
Since the Defend Trade Secrets Act (“DTSA”) in 2016, the number of companies choosing to use trade secret law to protect and enforce their intellectual property has risen dramatically.
Non-compete and non-disclosure agreements with employees can keep your secret confidential if they join your competitors. Proactive enforcement of a breach of these agreements as well as trade secret misappropriation litigation can keep your trade secret protected.
U.S. courts can protect a trade secret. Successful trade secret plaintiffs may generally recover the following:
- The actual damages they have suffered as a result of the misappropriation of their trade secrets
- Any unjust enrichment gained by the defendant as a result of the misappropriation, to the extent it differs from the plaintiff’s actual damages
- A reasonable royalty for the use of their trade secrets, in some instances
- Exemplary damages where the infringement is willful and malicious
- Attorneys’ fees where the infringement is willful and malicious
- A court order preventing future infringement
Some methods of protection are secret.