By Emily Wilk
Trade secrets are a compelling aspect of intellectual property (IP) law. There are many conditions that must be met to consider a certain piece of information or invention a trade secret, however there is no application to file to the United States Patent and Trademark Office (USPTO) for the rights to secure this secret. Throughout IP law, there is a heavy reliance on the copyrights, trademarks and patent rights that designers attain to protect their ideas and designs from being stolen or copied. These rights to the protection of their ideas can be easily accessed by a judge to determine whether a defendant has violated a plaintiff’s protections ensured under these laws. However, there is a more complex and intricate process in determining whether a trade secret was stolen or not.
First, consider the definition of a trade secret. The Uniform Trade Secrets Act (UTSA) defines it as “information that includes a formula, pattern, technique or process that derives independent economic value that is not commonly ascertainable, and is subject of efforts to uphold its secrecy from other parties.” To maintain the secrecy of the certain formula, pattern, technique or process, it is vital secure protection through confidentiality agreements. These non-disclosure agreements ensure the outside party receiving the trade secret, in order to evaluate the inventor’s product, will keep the product information received classified (JOM). Due to the multiple facets that can encompass a trade secret, there are many different forms of law that can facilitate the implications of a trade secret in their specific area.
Within the mode of fashion law, many different attributes of information, such as formulas, pricing information, sourcing information and proprietary information technology, are fundamental trade secret protections (The Fashion Counsel). However, in the world of red soled shoes and cheetah-print handbags, many find it hard to determine the difference between a patented design and a design created by a trade secret. A patent exclusively demonstrates the product information and process of creation to the public if they wish to access it. By disclosing this information, a designer ensures that their idea and design will be protected for a number of years, as a limited time monopoly, until the patent license is up, at which point it can either be renewed or expire (USPTO). Trade secrets fly under the radar, allowing a designer create a certain designs that, if kept confidential, may be kept forever with no limits or bounds protecting the idea. The secret itself is protecting the idea.
However, one must consider if a designer should designate their idea as a trade secret or a patent. There is a process called reverse engineering in which other companies can take apart a product, in reverse order of putting it together, to determine the ways in which the product was made (NC State Ethics). When a company utilizes reverse engineering, it is to gain information that is integral to becoming competitive in the design market. If a company were to apply reverse engineering onto a patented product, it would be illegal because the company that owns the patent has full rights to the creation of the product whether it is done forwards or backwards. In any direction, all of the rights legally belong to the designer who owns the patent. However, products created by trade secrets are legally allowed to be reverse engineered, which could lead to the discovery of the secret by competing designers.
In a recent case of trade secret theft, Louis Vuitton is suing Coach for the secrets that the ex-Vice President of Louis Vuitton illegally carried over to her new position at Coach. Joon Ma, the former VP of LV, had violated multiple facets of her contract at Louis Vuitton. Firstly, Ma transferred confidential Louis Vuitton North America (LVNA) information from her work computer onto external hard drives. She later deleted all emails pertaining to LVNA to cover her tracks. Secondly, she violated her non-compete clause in her contract, which states that she may not join the team of a competing designer for six months after her resignation due to the secrets deeply invested in the fashion market. This is primarily concerning to LV because Ma was a valued executive who was always aware of the secrets traveling around the LV headquarters (Racked).
In this case, LV’s trade secrets were misappropriated from the inside and brought to a different company. This case shows that even with the most detailed non-disclosure agreements and contracts, a trade secret does not always remain a secret, especially in the world of fashion where one little expression or tell of secret information can lead to a total unwinding and loss of a designer’s own original idea.
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