Four simple steps to take right now “Don’t go public,” “don’t wait to take action” and “don’t do nothing” — this advice leaves much unstated. Specifically, what actions should a craft alcohol maker take to protect their trade secrets? Again, there is no definitive list, but the maker of craft alcohol may want to consider the following proactive steps: 1. Establishing a procedure to choose what information will be protected by a trade secret claim. Is the new gin recipe worth protecting? Can the new gin recipe be claimed as a trade secret? 2. Documenting how the protected information will be protected. Is the new gin recipe stored in a locked cabinet or computer file? Is the new gin recipe marked in a manner such that anyone who does see the new gin recipe knows your company considers the recipe a trade secret? Should the new gin recipe be marked “TRADE SECRET” or “HIGHLY CONFIDENTIAL” and if so, is it marked already?
3. Establishing restricted access to the protected information, even within the company, and limiting which employees have access to and knowledge of such information. Do employees not working directly on the distillation of the new gin need to know the exact recipe? 4. Using employment agreements which include confidentiality and non-disclosure provisions for all employees. Has the new hire in marketing, who has seen the new recipe in order to work on the new marketing campaign, signed an agreement to not disclose and keep confidential information?
It’s your success, keep it that way Beyond the considerations listed above, what actions may be considered “reasonable measures” can vary among a distillery, a brewery, or a winery because of the fundamental differences in production among the three. It can differ between a small start-up distiller with several employees and a large craft brewery with multiple product lines and a hundred or more employees. It can differ because of the underlying state laws governing trade secrets that contributed to the common practice in a particular region of the country. Consulting an intellectual property attorney on the nuances of maintaining trade secret rights can assist a craft alcohol maker in assessing their own particular circumstances. At the end of the day, taking the time to assess if a critical piece of business information can be protected as a trade secret enables your company to assert a set of protectable rights. If another person misappropriates those rights, your company may be able to stop that person from using those rights and your company may be awarded damages because of the misappropriation. The process of obtaining and protecting trade secret rights may be complicated and involve numerous steps. Nevertheless, the process can be of great benefit to your company. After all, no one wants his or her great new recipe to be the foundation of someone else’s success.
Candace Lynn Bell is an intellectual property attorney with Eckert Seamans Cherin & Mellott, LLC Buffalo, New York office. If you have any questions, please contact author Candace Lynn Bell at firstname.lastname@example.org. This information is intended to keep readers current on developments in intellectual property law and is not intended as legal advice. WWW.ARTISANSPIRITMAG.COM
The magazine for craft distillers and their fans.