Advising on business confidentiality

Commercial privacy & trade secrets

Pursuing & defending litigation claims for injunctions & damages arising from claims for:

  • misuse of confidential commercial information
  • breach of privacy

Every business has its secrets: from technical information to customer lists

UK law protects the wrongful use or disclosure of trade secrets by the civil law action for breach of confidence seeking damages and injunctions

Chambers UK rankings 2017/18 for intellectual property

What the team is known for: Depth of knowledge and experience in prosecution, licensing and litigation concerning brands, designs and copyrighted material. Advises fashion, electronics, drinks and financial services businesses large and small. Recommended for registry procedures and disputes involving overseas jurisdictions.

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    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.

    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:

    • 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.

    Example: 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 of express agreement the duty to keep information secret may be implied from:

    • The surrounding circumstances.  Example: 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.  Exceptionally a 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 available (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.

    Confidential word cloud concept

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