What Is Misappropriation Of A Trade Secret?
Misappropriation simply means taking or using something which the individual is not entitled to take or use. For example, misappropriating cookies means putting one’s hand in the cookie jar and taking cookies that they weren’t supposed to take. Misappropriation of a trade secret can involve wrongly or improperly downloading confidential information that provides value to the company, and using that information with/for a competitor.
We once handled a case that involved the misappropriation of recipes for use in making fried rice. One company that was entitled to have access to the recipes but not entitled to sell them to various customers took those recipes and sold them to other stores that weren’t licensed or authorized to use them. In this case, we were able to sue on behalf of the company that had developed and exploited the recipes, and obtain damages and future royalties from that misappropriation.
How Do You Prove Trade Secret Misappropriation?
Proving trade secret misappropriation is a multi-step process. First, it must be proven that what is being claimed as a trade secret is indeed a trade secret. Things that are well-known in the public sphere, such as the recipe for a food item that a chef makes at multiple cafeterias may not be a trade secret. A trade secret has to be a process or thing that is not well-known in the public sphere and that has not already been disclosed. For instance, if someone follows a recipe from the New York Times and sells the food from a home kitchen, they would not be able to claim that the recipe is a trade secret because it would have already been published to the public. A trade secret could be something as commonly referenced as KFC’s 11 herbs and spices, or the recipe they use for fried chicken. Trade secrets can involve computer software, computer devices, methods for taking apart complex machinery, and a broad range of other things.
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