Industrial espionage has always been a means of competition. Therefore, it is not surprising that a whole legislative institute, “Commercial Secret”, has been developed in business law. Having received special protection, this sub-branch of the law operates with special concepts, means of application and tools to uphold confidentiality.
Entrepreneurial practice is always based on the receipt and redistribution of information, which is absorbed by trade secrets. This situation is due to the fact that competition consists in a quick and efficient search for the necessary information about the process of production of products or the provision of services, as well as access to a potential buyer. You can safely say that this is always information. However, what categories does trade secret contain?
The first is the secrets of production, or (in a Western manner) know-how. Also, in certain scientific works (for example, in the theory of Prof. Pelikh A.S.) they are called technological and scientific-technical information.
The second is business information. This section should include plans for the development of the enterprise, redistribution of financial flows, results of marketing research, building a business reputation and ways to promote goods or services in the domestic or foreign market.
This approach is characteristic of the economic position. But legal scholars limit the list of what trade secrets can incorporate. This provision implies a ban on the classification of the following information:
1. Documents ensuring the functioning of the enterprise (statutory documents, licenses, authorizations, list of persons with the right to represent the interests of the enterprise without presenting a power of attorney, etc.).
2. Information reflecting employment at the enterprise, as well as the level of payments for labor.
3. Documents on the environmental impact of the production of goods and / or services .
4. Documents regulating the activities of state or municipal enterprises.
5. Information on revealed and proven facts of violation of the law.
These provisions are regulated by Article 5 of the Federal Law “On Trade Secrets”.
Based on the foregoing, we can conclude that
Trade secret - a person’s right to refuse access to business, scientific and technological information of an enterprise to third parties, with the exception of cases strictly regulated by law .
And, accordingly, if there is a right to refuse, then there must be a right to protection against illegal encroachments on hidden information.
Protection of trade secrets
Speaking about the methods of its protection from illegal encroachments, legal scholars traditionally distinguish two ways: extrajudicial and judicial.
The first method of protection actually consists in a combination of techniques, the use of which reduces the risk of obtaining information that is part of a trade secret.
The second method is already aimed at eliminating the consequences of the disclosure of proprietary business, scientific and technological information. In this case, trade secrets are protected by filing a claim with the arbitration court. In this case, a person who has suffered from malicious acts may demand compensation for material damage, restoration of the existing situation or prohibition of the dissemination of information, either explicitly or implicitly.
Summing up, it should be said that trade secret is a special institution, the consideration and strengthening of which is the subject of the intersection of two sciences - economic and legal. And therefore, the development of legal protection of business and scientific-technological information plays a significant role in the struggle for the consumer.