PROTECTION OF TRADE SECRET ASSETS IN NIGERIA
If you ask the owners of most companies whether they have any intellectual property assets, assuming they even know what you are talking about, they will almost certainly answer “no.” The problem is that the answer should universally be a resounding YES! Every company has intellectual property assets, one of which is a Trade Secret.
A Trade Secret is a type of confidential business information that is protected by law from being disclosed or used by others without proper authorization. This can include information such as formulas, patterns, techniques, processes, designs, plans, software algorithms, codes, or even customer lists.
Trade Secret is considered valuable to a business because it gives the company an advantage over its competitors. Renowned examples of Trade Secrets include Col. Sander’s handwritten original recipe of 11 herbs and spices for KFC in 1940.
To qualify as a Trade Secret, the information must meet certain criteria. It must be secret, meaning that it is not generally known or readily ascertainable by proper means by another person who can obtain economic value from its disclosure or use. It must also have commercial value, which means that it provides the company with a competitive advantage. Additionally, the company must have taken reasonable measures to keep the information secret.
Trade Secrets are protected under the laws of many countries, such as the United States, which has the Trade Secrets Act of 2016, also known as the Defend Trade Secrets Act (DTSA), Uganda Trade Secret Protection Act 2009, the United States of America’s Uniform Trade Secrets Protection Act 1985. And at the international space, Article39 Trade-Related Aspect of Intellectual Property Rights 1995 ("TRIPS"). Although, Nigeria is a signatory of the WTO's TRIPS, however, TRIPS has not been domesticated in Nigeria to give it the force of law.
Notwithstanding, Trade secrets are recognized and used in Nigeria but there is no legislation regulating them. The effect of the nihility of specific legislation on Trade Secret in Nigeria is the absence of a delineated definition of Trade Secrets and available remedies.
There are several ways in which a company can protect its Trade Secrets. One-way is through non-disclosure agreements (NDAs), which prohibit the recipient of the Trade Secret from disclosing or using the information without the company's permission. Another way is through the use of physical and computer security measures, such as locking up sensitive documents and securing computer servers to prevent unauthorized access. Additionally, companies can also limit the number of employees who have access to Trade Secret information and require that employees sign confidentiality agreements.
In Nigeria, Trade Secret is protected by entering non-compete and/or non-disclosure agreements with their employees and partners. Although, the protection that is offered by the agreements is slim compared to the proper regime that legislation could have put in place.
Inconclusion, a Trade Secret is a valuable type of confidential business information that is protected by law from unauthorized disclosure and use. Companies can protect their Trade Secrets through the use of non-disclosure agreements, physical and computer security measures, and limiting access to the information.