‘On Contract Law’s Increasing Distortionary Effect on Substantive Trade Secret Law and How to Stop It’

Deepa Varadarajan, The Trade Secret-Contract Interface, 103 Iowa Law Review 1543 (2018). Trade secret law and contract law have a complicated relationship. Every subject of commerce is extensively privately regulated by contracts. Intellectual property is distinct from other things of value, because it provides exclusive rights to its owners, and burdens others with corresponding responsibilities to others. Yet unlike trade secret’s intellectual property cousins copyright and trademark, there is no state or federal public register of trade secret interests to give potential infringers notice of a trade secret. What’s more, trade secret rights are relational, that is, liability for disclosure of a trade secret based on the context and expectations of the owner and the discloser. Therefore in trade secret law, unlike other intellectual property, contracts frequently are key evidence of the substance of the trade secret and the standard of behavior required for former employees to avoid infringing trade secrets … (more)

[Lauren Scholz, JOTWELL, 17 December]

First posted 2018-12-17 15:26:08

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