Trade Secrets, Geographical Indications

Trade Secrets

Trade secrets are a type of intellectual property that comprise formulas, practices, processes, designs, instruments, patterns, or compilations of information that have inherent economic value because they are not generally known or readily ascertainable by others, and which the owner takes reasonable measures to keep secret. In some jurisdictions, such secrets are referred to as confidential information.

Trade secrets are the secrets of a business. They are proprietary systems, formulas, strategies, or other information that is confidential and is not meant for unauthorized commercial use by others. This is a critical form of protection that can help businesses to gain a competitive advantage.

Although intellectual property rights protection may seem to provide a minimum amount of protection, when they are utilized wisely, they can maximize the benefit and value of a creation and enable world-changing technology to be developed, protected, and monetized.

A trade secret is information that

• Is Not Generally Known to The Public
• Confers Economic Benefit on Its Holder Because the Information Is Not Publicly Known
• Where the Holder Makes Reasonable Efforts to Maintain Its Secrecy.

Protection of undisclosed information (trade secrets) is dealt with under Article 39 of TRIPS. Companies and individuals can prevent information from being disclosed without their consent if;

• It is not known or readily accessible to people within the circles that usually deal with the information in question.
• Has commercial value being secret and has been made subject to steps, by the person lawfully in control of the data, to keep it protected.

Types of trade secrets

• The ingredients used in the product:

For example, soft drinks manufacturer Coca-Cola keeps its ingredients a closely-guarded secret and the recipe is accessible only to a select few.

• Way of manufacturing:

A company may get a competitive edge just by finding a new way of making things. These may include types of manufacturing equipment, processes or systems. For example, computer chip maker Intel came up with ‘Copy Exactly!’ to ensure consistent quality of products regardless of where it was manufactured.

• Way of selling and distribution:

Companies often devise unique methods of selling and distributing products, which may give them an extra edge. A fitting example would be food brand Kellogg’s coming up with a data-sharing strategy with retailers to reduce unsold inventory.

• Advertising strategies:

The success of any product or service also depends on the way of advertising. Firms will always want to keep their ad strategies protected. Most firms take necessary precautions to prevent inadvertent disclosure of trade secrets. This is because if a trade secret is disclosed, it is no longer possible to protect information, particularly, in the age of social media. This is why most companies, while recruiting an agency to create an advertisement for business, will be required to keep a watch on who has access to the company’s confidential business.

Geographical Indications

A geographical indication (GI) is a name or sign used on products which corresponds to a specific geographical location or origin (e.g., a town, region, or country). The use of a geographical indication, as an indication of the product’s source, acts as a certification that the product possesses certain qualities, is made according to traditional methods, or enjoys a good reputation due to its geographical origin.

Appellation d’origine contrôlée (‘Appellation of origin’) is a sub-type of geographical indication where quality, method, and reputation of a product originate from a strictly defined area specified in its intellectual property right registration.

Legal effect

Geographical Indications protection is granted through the TRIPS Agreement. Protection afforded to geographical indications by law is arguably twofold:

• On one hand it is granted through sui generis law (public law), for example in the European Union. In other words, GI protection should apply through ex officio protection, where authorities may support and get involved in the making of GI collective dimensions together with their corresponding GI regulatory council, where ongoing discourse with the government is implied for effective inspection and quality control.
• On the other hand, it is granted through common law (private law). In other words, it is similar to the protection afforded to trademarks, as it can be registered through collective trademarks and also through certification marks, for example in the United States of America.

The geographical origin of a product can create value to producers by:

• communicating to consumers the product’s characteristics, which derive from the climate, soil and other natural conditions in its particular area
• promoting the conservation of local traditional production process
• protecting and adding value to the cultural identity of local communities.

The consumer-benefit purpose of the protection rights granted to the beneficiaries (generally speaking the GI producers), has similarities to but also differences from the trademark rights:

• While GIs denote a geographical origin of a good, trademarks denote a commercial origin of an enterprise.
• While comparable goods are registered with GIs, similar goods and services are registered with trademarks.
• While a GI is a name associated by tradition with a delineated area, a trademark is a badge of origin for goods and services.
• While a GI is a collective entitlement of public-private partnership, a trademark refers entirely to private rights. With GIs, the beneficiaries are always a community from which usually, regardless of who is indicated in the register as applicant, they have the right to use. Trademarks distinguish goods and services between different undertakings; thus, it is more individual (except collective trademarks which are still more private).
• While the particular quality denoted by a GI is essentially related to a geographical area, although the human factor may also play a part (collectively), with trademarks, even if there is any link to quality, it is essentially because of the producer and provider (individually).
• While GIs are an already existing expression and are used by existing producers or traders, a trademark is usually a new word or logo chosen arbitrarily.
• While GIs are usually only for products, trademarks are for products and services.
• While GIs cannot become numerous by definition, with trademarks there is no limit to the number that might be registered or used.
• While GIs may not normally qualify as trademarks because they are either descriptive or misleading and distinguish products from one region from those of another, trademarks normally do not constitute a geographical name as there is no essential link with the geographical origin of goods.
• While GIs protect names designating the origin of goods, trademarks collective and certification marks where a GI sui generis system exists protect signs or indications.
• While with GIs there is no conceptual uniform approach of protection (public law and private law / sui generis law and common law), the trademark concepts of protection are practically the same in all countries of the world (i.e., basic global understanding of the Madrid System). In other words, with GIs there is no international global consensus for protection other than TRIPS.
• While with GIs the administrative action is through public law, the enforcement by the interested parties of trademarks is through private law.
• While GIs lack a truly global registration system, trademarks global registration system is through the Madrid Agreement and Protocol.
• While GIs are very attractive for developing countries rich in traditional knowledge, the new world, e.g., Australia, with a different industry development model they are more prone to benefit from trademarks. In the new world, GI names from abroad arrive through immigrants and colonisation, leading to generic names deriving from the GIs from the old world.