Click here to view image.
The law of intellectual property rights is all pervasive – regardless of the industry, product, service or line of work, there is always something in a business that can be protected under some stream of intellectual property. While protection under IP comes when the person with the knowledge discloses it to the government, through patents, copyright and designs, what happens if you don’t want to let other people know? What happens if the knowledge that you hold is something that can be replicated by someone else particularly competitors, how do you protect it?
You keep it a secret!
There are secrets all around us and the most secretive of the lot appear to be in the Food and Beverage industry.
In law school when you learn about trade secrets most professors begin with the secret formula of the world’s most popular soft drink. Legend goes (backed by Wikipedia) that documented secret formula (Merchandise 7X) was housed at several banks until 2011 when it was moved to the “World of Coca Cola” in Atlanta, and only a few people are privy to the information.
Nestlé’s Maggi Noodles and more importantly the flavouring or masala makes it incredibly distinct and unique. The ingredients and the proportion and method of making the masala is a well-protected trade secret.
The 11 herbs and spices that apparently go into the making of Colonel Sander’s secret recipe that makes KFC’s chicken ‘finger lickin good’ are also a closely guarded secret (in a safe in Kentucky) with only a few people in the world with access to it. Rumour has it that two different companies make separate portions of the recipe which are later combined to keep the secret.
Hershey’s Milk Chocolate:
While the ingredients to making chocolate are rather well known, the method in which Hershey’s makes their distinctly flavoured chocolates is proprietary information. Trade secrets and corporate espionage in the confectionary industry is a well-known association. It is rumoured that the intense competition and spy vs spy tactics employed by Cadbury and Rowntree in England influenced Roald Dahl when he wrote “Charlie and the Chocolate Factory”
Krispy Kreme Doughnuts:
The Krispy Kreme ingredients for the dough and the method in which their classic doughnuts are made are also proprietary information that is closely guarded.
Locking away secret formulae in safes is not the only means of protection available. Some countries have specific legislation and laws to protect trade secrets, India unfortunately does not. While the law isn’t codified, there is still protection through confidentiality agreements and contracts. Non-Disclosure and Confidentiality agreements are valid and recognized by Courts in India. There have been a few cases where the Courts have held granted injunctions to plaintiffs when former employees have left and used copyright protected material like an internal client database. This would in theory extend to copyright in a formula or secret which is written down. An injunction would stop someone else including a competitor from using the copyright protected material.
What do I need to do?
Going by the examples above, you would need to
- Keep the secret in writing and locked away safely,
- Restrict the number of people who have access and if possible provide them with limited access or access to limited portions of the secret
- Have all the people with access sign comprehensive non-disclosure and confidentiality agreements.
- Have a way to pass down the information to the next in line.
It all comes down to a tactical decision that you need to make – disclose the information while registering your intellectual property or keep it a secret through contracts and secrecy ploys. None of the methods are a hundred percent safe, but given that the KFC, Nestle and the others have managed to keep their secrets for such a long time there may be something to it.
Before you open that safe and sign those contracts just remember Benjamin Franklin who said, “Three may keep a secret, if two of them are dead.”