My wife loves Lord of the Rings, I can take it or leave it to be honest, the films (at the risk of sounding like a millennial, I’m not really thinking of the books) are extremely long and, at times, pretty tedious (I can already feel the anger of all you Tolkienst’s out there) but she sits for hours on end happily watching them over and over. We’ve been together for a long time so, much to my annoyance, I can recall most of the script verbatim. One of her favourite lines, and perhaps of most interest from an IP lawyer’s perspective, is uttered by Gandalf – handing “the ring” (a ring that looks much like any other ring apart from the fact that it has some writing on the inside, which doesn’t strike me as much of novelty) to Frodo. He touches him on the shoulder, looks deep into his vacant blue eyes (I don’t like Elijah Wood either) and says; “keep it secret, keep it safe.”
Now I’m not sure if Gandalf is issuing two instructions, the first to keep the ring secret, the second to keep it safe, or whether he has in fact approached the whole issue from a legal perspective and is informing Frodo that the resultant effect of keeping the ring secret will mean that actually it is kept safe. If it’s the former, then Frodo needs to seek alternative advice, if it’s the latter, then perhaps Gandalf is actually quite a clever chap.
Whether it be a new invention, a unique recipe or even a pitch to a potential client, keeping your commercial information secret is one of the best ways to keep it safe. But, I hear you ask, how can you make use of the commercial information if it can’t be disclosed to anyone? Well, the simple answer is to use a Non-Disclosure Agreement (“NDA”). This is an agreement between two or more parties which essentially says: I’m going to tell you a secret, but only because you’re agreeing to keep my secret a secret. This allows you to still send details of your invention to your manufacturer, discuss your recipe with potential investors or even pitch your brilliant ideas to future clients. The NDA, aside from being an enforceable commercial contract which keeps your information out of the public domain, has the added advantage of being a deterrent to would-be disclosers. It’s also a useful early test of a relationship, if the opposing party refuses to sign an NDA then it would suggest that they either don’t value the information in the same way that you do or, even worse, they don’t intend to keep it secret once it’s been disclosed. Either way, it might not be worth undertaking any sort of quest with them.
So, keep your commercial information secret, keep it safe, it’s very precious after all.