A company’s trade secrets are often its
most valuable assets. A trade secret is defined as any valuable
business information that is not generally known and is subject
to reasonable efforts to preserve confidentiality. Specifically,
trade secrets consist of information or material, including
a formula, pattern, compilation, program device, method, technique,
or process, that: (1) derives independent economic value from
not being generally known to, and not being readily ascertainable
by proper means by, other persons who can obtain economic
value from its disclosure or use; and (2) is the subject of
efforts that are reasonable under the circumstances to maintain
its secrecy.
Almost every business has at least some trade secrets. In
many cases, a company’s trade secrets are its very lifeblood,
and their unauthorized use by third parties could cause irreparable
harm. Depending on the circumstances, a list of customers
or suppliers which is not commonly known by the public may
qualify for trade secret protection.
Trade secret misappropriation can be thought of as a type
of unfair competition. The owner of a trade secret may be
injured by unauthorized disclosure of a trade secret as well
as by unauthorized use. Any conduct by the actor that enables
another to learn the trade secret is "disclosure"
of the secret. In general, trade secrets will be protected
from improper or unlawful use or disclosure by those who obtain
access to them through improper means or by those who breach
a promise to keep the information confidential. Trade secrets
are entitled to protection so long as competitors fail to
duplicate them by legitimate, independent research or processes.
Under the Georgia Trade Secrets Act, O.C.G.A. § 10-1-760
et seq., a claim for misappropriation of trade secrets requires
a party to prove that (1) it had a trade secret and (2) the
opposing party misappropriated the trade secret. A party misappropriates
a trade secret when, among other things, it discloses or uses
a trade secret of another, without express or implied consent,
knowing that at the time of disclosure or use the trade secret
was acquired under circumstances giving rise to a duty to
maintain its secrecy or limit its use. O.C.G.A. § 10-1-761(2)(B).
"Misappropriation " means: (i) acquisition of a
trade secret of another by a person who knows or has reason
to know that the trade secret was acquired by improper means;
or (ii) disclosure or use of a trade secret of another without
express or implied consent by a person who (A) used improper
means to acquire knowledge of the trade secret; or (B) at
the time of disclosure or use knew or had reason to know that
his knowledge of the trade secret was (I) derived from or
through a person who has utilized improper means to acquire
it; (II) acquired under circumstances giving rise to a duty
to maintain its secrecy or limit its use; or (III) derived
from or through a person who owed a duty to the person seeking
relief to maintain its secrecy or limit its use; or (C) before
a material change of his position, knew or had reason to know
that it was a trade secret ad that knowledge of it had been
acquired by accident or mistake.
There are no technical limitations on the nature of the conduct
that constitutes "use" of a trade secret. As a general
matter, any exploitation of the trade secret that is likely
to result in injury to the trade secret owner or enrichment
to the defendant is a "use." Thus, marketing goods
that embody the trade secret, employing the trade secret in
manufacturing or production, and relying on the trade secret
to assist or accelerate research or development all constitute
"use." The unauthorized use need not extend to every
aspect or feature of the trade secret; use of any substantial
portion of the secret is sufficient to subject the actor to
liability. Similarly, the actor need not use the trade secret
in its original form. Thus, an actor is liable for using the
trade secret with independently created improvements or modifications
if the result is substantially derived from the trade secret.
An implied term of an employment contract is that an employee
will not divulge a trade secret learned by virtue of his employment
to a competitor of his former employer. When one has acquired
knowledge of a trade secret by reason of a confidential business
relationship with the holder of the trade secret, he can be
enjoined from improperly using or disclosing it. Although
such right exists irrespective of any copyright or patent,
it does not exist with respect to matters that are generally
known in the trade.
Notably, an employee's skill, aptitude, and other subjective
knowledge obtained in the course of employment are not the
property of the employer. A former employee has a right to
use such knowledge and information in his profession or trade,
except to the extent limited by a valid restrictive covenant.
In other words, a former employee has a right to take with
him all the skill he acquired, all the knowledge he obtained,
and all the information he received, so long as nothing is
taken that is lawfully the property of the employer. The courts
have held that an individual is free to use any information
he can remember from his former employment, including trade
secrets, in the absence of a valid and enforceable restrictive
covenant.
Dozier Law Group represents businesses
and entrepreneurs who have been or would be damaged by the
unauthorized use and disclosure of their trade secrets. Whether
your situation involves tens of thousands or millions of dollars,
if your company has or will suffer damages, we can help address
and resolve the situation. Call (404) 949-5600 to speak directly
with Managing Principal Brad Dozier, an experienced and dedicated
business litigation attorney, or
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Dozier Law Group represents clients in and around the Atlanta
metro area, including Alpharetta, Fairburn, Roswell, Sandy
Springs, Decatur, Lithonia, Druid Hills, Dunwoody, Tucker,
Marietta, Smyrna, Vinings, Duluth, Acworth, Fayetteville,
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Woodstock, Gainesville, Morrow, Carrollton, College Park,
Peachtree City, Riverdale, Newnan, Conyers, Covington, Canton,
Milton, John's Creek, Stockbridge, McDonough, Douglasville and other cities throughout the state of Georgia.
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