Trade Secrets Part 3: Is Unused Business Information Protectable as a Trade Secret?

Apr 05, 2014

By Reed Morris

An important element in the statutory definition of trade secrets in Colorado is that the trade secret must be something "relating to any business or profession which is secret and of value."  

An argument can be made that if the information is not currently being used or has not ever been used, then it is not protectable as a trade secret.  However, the definition of trade secrets under the Uniform Trade Secrets Act in Colorado suggests that information need only be "of value" (not necessarily used). While there is no statutory requirement that trade secret information be used in order to find protection under the law, such requirement might be required by a court considering the facts of your particular case. 

In advising businesses in this area, Mallon & Lonnquist recommends at least nominal recognition that the information "relates to" and is of "use" and "value" to the business within any confidentiality and non-compete agreement itself.  We also believe that the “value” of the information be recognized internally by the company and company policies be established to protect that value.   These are some of the core elements in creating and maintaining a comprehensive trade secret plan. 

The next topic in this series-- “Who Can Claim Trade Secret Protections in Colorado?” --will explore the statutory requirement that the trade secret must be something “relating to any business or profession…”

A previous post-- “What is a Trade Secrete under Colorado Law?” --provides the general and full statutory definition of trade secrets in Colorado and “A Colorado Trade Secret Owner’s Bill of Rights” describes the two fundamental rights of trade secret owners.    

Mallon & Lonnquist, LLC, is a business and real estate law firm. Reed F. Morris is a Colorado a litigation attorney with Mallon & Lonnquist, based in Denver, Colorado. Reed regularly represents businesses and individuals in transactions in and commercial disputes and can be reached at rmorris@mallon-lonnquist.com.

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