Can you keep a secret?

Kanisa George
Kanisa George

Kanisa George

Can you keep a secret? I know most of us can't. Perhaps it's the allure of being in possession of sought-after information or having weaponising details in your hands that could potentially blow up a situation. We share vulnerabilities and receive sensitive information that carries the oath of secrecy in our everyday lives. Still, and let's be honest, many of us struggle to keep things to ourselves, and even in those rare moments when we do, it serves a much greater good.

In the world of business, secrets can be the difference between having a unique flair and conforming to the plain and generic. Importantly, it can be the difference between marginal profits and a multimillion-dollar business. There is no doubt that the crisp taste associated with Coca Cola and the 11 herbs and spices found in Kentucky fried chicken are the best-kept secret, but how did these companies achieve this?

For KFC Corp, keeping the elusive mix of 11 herbs and spices under wraps is nothing short of a magic trick. So much so that the Colonel's Original Recipe is locked away in a company safe and treated as a closely guarded secret. The ingredients are known only to a handful of employees who have signed confidentiality pledges. Because KFC's original recipe and Coca-Cola's syrup formula have become an inherent part of their business value, the law steps in to protect what is known as their trade secrets. Recipes, business practices, resources or products affiliated with a particular brand or business are viewed by law as a form of intellectual property.

According to the World Intellectual Property Organisation, trade secrets are intellectual property rights on confidential information which may be sold or licensed. For such material to qualify as a trade secret, the information must be commercially valuable because it is secret, be known only to a limited group of people, and be subject to reasonable steps taken by the rightful holder of the information to keep it secret. This includes the use of confidentiality agreements for business partners and employees. For example, companies like Coca-Cola divide processing or formulating aspects of its production among workers, ensuring that no one knows the entire secret.

Trade secrets go way beyond the likes of recipes and are a lot more intangible than other types of intellectual property. It covers technical information such as manufacturing processes, experimental research data, software algorithms and commercial information such as distribution methods, list of suppliers and advertising strategies.

Once material falls within the definition of trade secret, any unauthorised acquisition, use or disclosure of such secret information in a manner contrary to honest commercial practices by others is regarded as an unfair practice and a violation of the trade secret protection.

In TT, trade secrets are protected by section 9 of the Protection Against Unfair Competition Act Chapter 82:36. According to section 9 (1), any act or practice in the course of industrial or commercial activities that results in the disclosure, acquisition or use by others of secret information without the consent of the person lawfully in control of that information (the rightful holder), and in a manner contrary to honest commercial practices shall constitute an act of unfair competition. Section 9(2) states that this could result from industrial or commercial espionage, breach of contract, or breach of confidence.

Of the various types of intellectual property, trade secrets might be arguably the most unique. Experts maintain that recipes and business practices are the kinds of intellectual property better served as a trade secret compared to a patent or copyright.

Of note, trade secrets require no registration and are protected without any procedural formalities. Yet the most appealing feature of trade secrets is that they can potentially grant proprietary rights in perpetuity or for as long as the owner can maintain the secrecy. When this is compared to a patent that has a shelf life, a trade secret could potentially last forever.

In order to protect trade secrets, business owners deliberately choose not to patent their ideas since patent applications must include an explanation of how to make and use the invention. For example, in the 1970s, Coca-Cola withdrew from India rather than comply with a law that would have compelled the soft drink manufacturer to transfer technology and its syrup formula to an Indian-owned company.

The level of protection afforded to trade secrets, however, cannot be compared to other areas of intellectual property like patents or copyright. A New York Times article revealed that even with the increasing importance of trade secrets to world economies, there is no global law on trade secrets or even a universal definition of a trade secret. And it isn't without its drawbacks. One challenge, in particular, is the phenomenon of "reverse engineering." This addresses the issue where the technological principles of a device, object or perhaps even recipe through analysis of its structure, function, and operation are discovered. Once the code is cracked, and the trade secret is revealed through lawful methods, no protection is afforded.

Even when faced with the possibility of discovery, companies are willing to risk it all and hold on to their most valuable secret, even where complete protection isn't guaranteed. So, think about it, would you make your most profound darkest secret accessible, or would you fight tooth and nail to protect it? I think the answer is pretty straightforward.


"Can you keep a secret?"

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