Is Your Noncompete Enforceable?
Covenants not to compete (aka noncompete agreements) are everywhere these days. Despite being widely used across many industries, employers and employees are often left wondering whether their noncompete agreement is enforceable. Having been at the forefront of this area of law, pioneering some of the most important legal determinations in court and publishing widely respected articles on this subject, the attorneys at Reha | Goodwin | Caras have consistently been recognized as some of the preeminent attorneys in Colorado respecting noncompete enforceability. While many business law attorneys dabble in this area of law, the truth is you need an attorney with intimate knowledge of all aspects of potential enforcement of a noncompete in order to truly navigate what is often a very difficult and stressful situation. Armed with a comprehensive knowledge of the law and an array of creative and solutions-oriented strategies, our firm has the expertise you need to obtain a favorable outcome.
Protecting Your Enterprise’s Trade Secrets
When people think of trade secrets, they often think of the secret formula for Coca-Cola or KFC’s chicken recipe. While those certainly are trade secrets, most businesses have some form of trade secret that is also worthy of protection. As recognized pioneers and leaders in this field of law, our team at Reha | Goodwin | Caras stands ready to provide its clients with the best representation possible regarding this component of today’s business environment. If you have questions regarding trade secrets and how to protect them, contact our firm to schedule a consultation with our experienced lawyers.
Various state laws exist to protect a business’s intangible assets and information. Included in the Colorado state law system is the Uniform Trade Secrets Act (UTSA), which provides protection for trade secrets. For information to constitute a trade secret, the UTSA requires that it be both secret and of value. Value will likely be assumed for any information that has any type of recognized commercial value, so the real issue under the UTSA is usually that of secrecy.
Defining ‘Secrecy’ In Business Asset Matters
Secrecy means what the term implies, that the information is not generally known to those outside of a select number of people to whom access is given to such information on a need-to-know, commercial necessity basis. This does not necessarily mean that the information is known to no one outside the company, but universal knowledge of information clearly removes its status as the secret of any claimed owner thereof.
For secrecy to exist, the UTSA requires that the reputed owner of the information take “protective measures” to guard against unwarranted disclosure of such information to those to whom access should not be given. What constitutes sufficient protective measures is a case-by-case issue and likely depends on the type of information professed to be secret.
Customer lists – Customer lists, a segment of information that business owners routinely believe is secret, may not be afforded the same general sense of secrecy as might be afforded a secret recipe, formula or business method, although customer lists are certainly within the realm of information bases which may be afforded trade secrecy protection. The issue of secrecy for customer base will revolve around the same issues as any potential secret: secrecy, value, measures taken to maintain secrecy and such things as expense, time and effort necessary to independently replicate the information.
Design and business methods – For such things as designs and business methods, the same analysis is performed, but the inherent sense of secrecy of such information may be higher. Indeed, some of the most fundamental and valuable business information in existence has never been patented, copyrighted or trademarked.
For instance, the recipe for Coca-Cola syrup (perhaps the most closely guarded secret this side of nuclear launch codes) has never been patented. Rather, it is simply a closely guarded secret whose secrecy has been maintained for a century and a half, which was wise on Coke’s part because patent protection has only a limited lifetime before the technology is rendered a matter of public domain.
Contact Our Firm Today To Establish A Viable Trade Secrecy System
Just how far the owner of information must go to meet the protective measures requirement of secrecy is uncertain. Adopting a system that incorporates company wide mandatory trade secrecy agreements and the like may be sufficient, or it may not. Adopting such measures certainly doesn’t hurt.
At Reha | Goodwin | Caras, we help clients establish viable and enforceable trade secrecy systems. We can help you draft noncompete agreements, trade secrecy agreements, nondisclosure agreements, licensing agreements and other agreements to protect your soft assets. We do so with one goal in mind: enforceability under applicable law. To schedule a consultation with our highly experienced lawyers for creative asset protection solutions, call our firm in Littleton at 303-932-1222, or contact us online.
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