All of the forms of intellectual property protection mentioned above include some element of publication. Works protected by copyright are generally available to the public (although recall that a copyright owner has the right to not publish a work). The patent bargain requires disclosure by the patentee in exchange for exclusive rights. Industrial designs are for use on articles, and when an industrial design registration is granted, the public may view the registration. Trade-marks need to be displayed and used in order to maintain protection.
On the other hand, sometimes there is information that doesn\’t fit into any of the categories of copyright, industrial design, patent, or trade-mark, or needs to be kept secret because it gives the owner a competitive advantage. Such information may be protected by the owner as confidential information. This is a legal concept that does not require registration.
In order to preserve confidential information or a trade secret, the owner of the information must treat it as confidential. The information must be kept secure. If it is revealed to any other person, it must be done under conditions indicating that the transmission of the information is confidential. The best way to do this is by having the owner and the recipient of the information sign a confidentiality (or \”non-disclosure\”) agreement. Without a signed agreement, in the case of use or misuse of the confidential information, it is more difficult for the owner to prove that terms of confidentiality were in place.
Protecting information as a trade secret can be spectacularly successful (for example, the formula for Coca-Cola; if it had been patented, then anyone could have replicated the formula decades ago) but it has significant limitations. If a third person, who is not bound by any terms of confidentiality, discovers the information, then this third person is at liberty to use it. Had the information been patented (if it were suitable for patenting), then during the life of the patent even this third person would not have been able to use the information.