New Zealand: Protecting Confidential Information – Keeping It "Mum"

Last Updated: 17 October 2006
Article by Ian Cockburn

In this day of the phrase, the age of the sound byte, where we are constantly bludgeoned by new sayings such as "wassup", "your dissed" and "that’s a heads up", or even heaven forbid banalities such as "moving forward" some old sayings still have meaning.

For example, there is an oft’ used old English colloquialism which talks about "keeping it mum" or "mums the word"– conveying to the recipient that this information is confidential - and moreover intimates that the information is of some value.

So why then do we have expressions such as these? Well, the simple answer is that the information is confidential and does have a value - and when used properly, will increase in worth – but, on the other hand, when used indiscreetly will reduce in value.

Consequently, confidential information should be protected in the same way that we protect our buildings and our homes. "Loose lips, sink ships", to coin a phrase.

How Then Do We Protect Our Confidential Information?

Well, the first step is to understand just a little bit about Intellectual Property and work out just where that information lies. Does it lie between somewhere that is new and non-obvious such as an invention and somewhere that is known, possibly for generations, but has ridden the test of time and provides that very special edge which makes a good product a great product – or is, at the very least is the difference between a $2 shop item and something which belongs in the High Street?

Intellectual property falls into two main categories:

(i) "Public" intellectual property which is published such as patents, trade marks and copyright, and

(ii) "Secret" intellectual property which is kept hidden from the public domain by way of a trade secret. The protection of such confidential information is of vital importance to most businesses, and is particularly important in small businesses where employees come and go.

What we are talking about is "Secret" Intellectual Property.

All small businesses have trade secrets, ranging from secret recipes & processes to more mundane things like client lists, raw materials purchases and advertising strategies. Trade secrets are the lifeblood of a small business. And all small businesses need to protect their commercial secrets so that competitors, former employees, and customers do not grab them for themselves.

The Next steps in the process of protecting confidential information really involve a company policy. That policy will not only identify confidential information falling within the term "trade secrets" but will also put in place an active programme to ensure that all employees are aware of their obligations and duties to the business, both during and after their employment, and that all suppliers and distributors are aware of their duties to maintain secrecy in their dealings.

Steps that Can be taken to Keep Confidential Information "Secret"

So lets look at possible steps that SME’s can reasonably put in place to ensure that confidential information is protected.

Step 1: Have a Company Policy! Ensure that there is an individual, department, or Patent Attorney firm is charged with the responsibility of preparing and maintaining confidential Information and reporting it to the Board of directors or partners.

Step 2: Identify those business methods/processes/databases that need to be protected. These include recipes, processes learnt through trial and error, manuals, strategies and above all commissioned marketing and advertising campaigns

Step 3: Ensure that every employee from the CEO, CFO, Board of Directors to the shop floor is aware of the importance of IP and has this encapsulated in their employment contract.

Step 4: Ensure that every employment contract has both a duty of confidence and a restraint of trade clause.

Step 5: Ensure that third parties such as Suppliers and Distributors have in place contracts securing the dissemination of trade secrets and/or breach of confidence in their individual agreements.

Step 6: Put in place a company wide education programme so that the importance of IP is understood. Such a programme should include accounting, legal, sales, marketing & advertising departments, distributors, R&D departments and any outside consultants.

Step 7: Consider how your firm uses its confidentiality, Non-disclosure & Non –Analysis agreements- their duration and their scope.

Step 8: Ensure that all company Brands and their proper use should are protected energetically

It can be seen that the protection of confidential information, while essential, is not straightforward. It is clearly important for all organisations to have in place a system to identify confidential information and to take steps to protect it.

Such steps would include ensuring that appropriate terms are present in contracts of employment, impressing the confidentiality of such information upon employees and restricting the availability of confidential information to a ‘need to know’ basis. If any confidential information is to be disclosed outside of the organisation appropriate confidentiality and non analysis agreements need to be entered into.

It is strongly recommended that legal advice is sought from a professional person with experience and expertise in the field in all matters involving confidential information.

The author is WebEditor, Manager Advertising & Marketing at PIPERS - Global, A Patent attorney Firm with Offices in the United Kingdom, New Zealand, Australia, Singapore and Malaysia.

PIPERS endeavors to be as accurate as possible when preparing its articles and has taken all reasonable steps to ensure that the information contained herein is accurate. The contents of this article are for purposes of information only.

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