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Unit 7 - Consolidation IP CONFIDENTIALITY What is protected?
What benefit is there?
Protects against unauthorised disclosure
How is obtained?
Implied Arises automatically (no registration) Express By contract Indefinitely
How long does it last?
The law will uphold a person's obligation to keep a secret, in certain circumstances
? Not an IP right in the pure sense
? Case law based Arises from the equitable jurisdiction of the court to restrain unconscionable behaviour Example of use - maintaining confidentiality before submitting a patent application (vital to avoid destruction of the invention's novelty) o Well-guarded secret may be protected indefinitely, rather than simply for the limited period afforded to IP rights (e.g. 20 years for patents) Case law relates to the express obligations of confidence are lacking and implied duties confidentiality have to be considered. BUT express obligations may and often should be imposed on key employees or independent contractors. AG v Times Newspapers Ltd 1990 - express confidentiality agreement may not be upheld by the court. London Regional Transport v Mayor of London 2003 - publication was in the public interest Confidential info principle arises from the equitable jurisdiction of the court to restrain unconscionable behaviour, where such behaviour may result in damage to a person. Prince Albert v Strange 1849 - Early example of the courts readiness to injunct TP recipients of confidential info
The elements of De Maudsley v Palumbo 1996 (the Ministry of Sound case) - affirmed the confidentiality earlier test from Coco v AN Clark 1969:
1. Did the information have the necessary quality of confidence about it?
2. Was the information imparted in circumstances importing an obligation of confidence?
3. Was there any unauthorised use of the information?
? Ideas or concepts cannot be protected, nor can information which is too vague ? preliminary development of a definite product needs to be shown
? The idea must contain some element of originality OUTCOME 1 - Analyse a clients information to decide whether it is protected
Does info have necessary
De Maudsley - C's ideas were too vague to constitute confidential info o In order to merit protection the ideas must contain an element of originality
quality of confidence about it?
Fraser and Others v Thames TV Ltd and Others 1984 - the idea must: Contain some element of originality Be clearly identifiable Be of potential commercial attractiveness; and Be sufficiently well developed to be capable of actual realisation
- Douglas v Hello 2007 - wedding photographs were considered matters in which a quality of confidence would arise. All guests were under a strict obligation of confidence regarding photography and this was enforced by the staff
- Faccenda Chicken - No confidentiality clause, D started own company using knowledge taken from old business. Implied confidentiality. The info D used wasn't a trade secret so he could continue using his pricing and customer information. Trade secrets will be confidential post contract BUT confidential info will only be protected during the employment contract and employees are allowed to use info after employment is over.
- Roger Bullivant - A confidentiality clause. D took card index from old employer to start new co. This still wasn't a trade secret. It was just more confidential info. Only confidential info that you as an employee could inevitably carry away in your head can be used after employment (D couldn't have taken that amount of info in his mind in good faith) he took steps to physically copy the info. Springboard injunction only to last as long as D gained unfair adv which was 12 months (this was the time limit in the contract of employment). If D hadn't copied it all and just used the bits he could remember this would have been fine. 4 classes of information
1. Trade secret
3. implied confidentiality both during and confidential Employees info skill and after employment If needs to be knowledge Naturally
- Secret process of manufacture e.g. in physical form then this carried away chemical formulae, special methods of will be by employee construction. Other info of sufficiently protected to, if will NOT be high degree of confidentiality as to not then forms protected amount to TS (know-how of making part of products etc) employee skill and
- EU draft directive on protection of knowledge (3) trade secrets - provide clear and uniform level of protection across EU (not out yet)
4. Trivial/public knowledge Not protected in any situation
e.g. customer lists taken in physical form or copied
OUTCOME 2 - Was the alleged infringer under an obligation of confidence
Was the info Occasion where information imparted must be a business one not a social imparted in one circumstanc Confidentiality must be made clear es importing Did the person who obtained the info in circumstances where thy know or an obligationhave reason to believe that they should not have it of confidence?
? De Maudsley - the claimant failed to explain that info was confidential, failing an essential element of the test (info was imparted in social circumstances so no obligation of confidence)
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