A/E Confidential: Protecting Trade Secrets

It seems as though everywhere you turn, you run into someone requesting a “confidentiality agreement.” A recent experience comes to mind. I represented a landlord whose prospective tenant was in the commercial real estate brokerage business. The tenant demanded a general confidentiality agreement, presumably to prevent the landlord from snooping around its offices and learning its business secrets. The tenant was eventually persuaded that it was neither appropriate nor necessary; and, indeed, I believe any tenant ought to reconsider leasing if it truly worries about a landlord grabbing its perceived business secrets. For purposes of the current discussion, this story illustrates two things: • The increasing awareness of the value of proprietary business information and intellectual property. • A general lack of understanding among lay business people of what can and should be protected under the law and the mechanics of obtaining such protection. In approaching the topic of confidentiality, one must consider two often-intertwined concepts: confidentiality agreements and trade secrets.