A protected trade secret in Georgia may come in many forms. A pattern, recipe, formula, method, device, drawing, or even a list of potential customers that is not known to or obtainable by the public can constitute a trade secret. A court may even find that information widely known to the public is protected when that information is compiled in a unique way. Georgia only requires that a trade secret have some economic value which is derived from its secrecy and be reasonably protected by the business.

Under Georgia intellectual property law, these protected secrets are obtained illegally through theft, bribery, or misrepresentation. In addition, espionage or using electronic methods to obtain trade secrets is forbidden. A common occurrence is when a former employee sells a trade secret to a competitor. Georgia law allows former employees to take all knowledge, skills, and information with them to their next place of employment, but the taking of property such as a trade secret is generally not allowed. In many of these situations, the former employee will sell or reveal a protected trade secret after agreeing not to engage in such conduct. These nondisclosure agreements are generally valid, and they can hold the employee liable. The business or competitor acquiring the trade secret may also be held liable if it had reason to know that the trade secret was acquired by improper means.

A court may grant several different remedies if it determines that a defendant misappropriated trade secrets. The first of these is injunctive relief. This type of remedy will prevent the defendant from publishing the secrets and attempt to safeguard any information that has not yet been taken. A court may also award monetary damages for the loss caused by the misappropriation as well as any financial benefits the defendant received. In cases where the misappropriation is malicious or willful, the court may send a powerful message to punish and deter the offenders by ordering punitive damages.

The burden of proof is on the plaintiff to establish that a trade secret has been misappropriated. First, a plaintiff must prove that a trade secret exists. As noted before, a trade secret must have some economic value which is derived from its secrecy and be reasonably protected by the business. Second, the plaintiff must prove that the defendant misappropriated the trade secret through theft, bribery, misrepresentation, espionage, or broken agreement.

The strongest defense available to the defendant is to argue that there was no secret. A trade secret is usually not protected if it has been published by another party. Thus, if a defendant attained the information from a newspaper or a book, a court will probably find the defendant not liable. A business must be especially careful concerning how much information it reveals to its customers. If the information includes parts of a trade secret, it may not be protected.

The defendant may also argue that the injured business did not use reasonable efforts to maintain secrecy. A court will look to see if the plaintiff instructed employees properly, used locks and keys to limit access to information, required authorization before a secret was conveyed, or used passwords on computers. If the steps the business took were not reasonable under the circumstances, the defendant may not be liable.

In addition, competitors are usually allowed to use reverse engineering to acquire a trade secret. However, if the competitor misappropriated the information which allowed it to successfully conduct reverse engineering, a court will likely find the defendant liable. In some cases, a competitor will argue that reverse engineering was made possible in part due to information available to the public, but this does not automatically release the defendant from liability.

The information provided above is a very general summary of the law regarding this particular legal issue at the time this text was prepared. Because this analysis is subject to change depending upon recent cases and developments, you should not rely on this summary as legal advice. As with any important legal question, you should always consult with a lawyer licensed to practice in your jurisdiction. Our lawyers are licensed to practice in all Georgia state and federal courts.