#13653 - Confidential Information - International Intellectual Property

CONFIDENTIAL INFORMATION IP RIGHTS AVAILABLE STEP 1: Introduction STATE: It was established in Coco v AN Clark (Engineers) Ltd [1969] that confidential information must satisfy a three point test: 1. Does the information have the necessary quality of confidence about it? 2. Was the information imparted in circumstances importing an obligation of confidence? 3. Was there any unauthorised use of the information? WHY IP RIGHTS AVAILABLE? STEP 2: Does the information have the necessary quality of confidence about it? Under De Maudsley, it was established that to have the necessary quality of confidence:? There must be some degree of preliminary development of a definite product In order to merit protection, the idea must contain an element of originality Confidentiality in a trade setting Under Thomas Marshall v Guinle, to establish the necessary quality of confidence: 1. 2. 3. 4. Owner believes release of the information is injurious to it or advantageous to rivals Owner believes the information is confidential/secret Owners belief in (1) and (2) is reasonable Information is judged in light of usage/practices of particular industry or trade concerned. Literary, creative or entertainment confidentiality Under Fraser & Others v Thames TV Ltd & Others, to have the necessary quality of confidence the idea must: 1. 2. 3. 4. Contain some element of originality Be clearly identifiable Be of potential commercial attractiveness; and Be sufficiently well developed to be capable of actual realisation STEP 3: Which class of information does the information fall within? Trade secrets Other confiden tial informat ionProtected by implied confidentiality, both during and after employment, even if there is not an express covenant.Secret process of manufacture e.g. chemical formulae, special methods of construction and other information/know-how of a 'sufficiently high degree of confidentiality'.Employers can help their cause by training staff in terms of what information can and cannot be disclosed by separating out these two types of information.Information that employees must treat as confidential but which, once learned, becomes part of their skill and knowledge applied in the course of business.So long as their employment continues, employees may not use or disclose this information without breaching their contractual obligations.However, once the employment terminates, the law allows the employee to use the skill and knowledge, unless there is an express obligation of confidence in relation to it.