COPYCAT WAR: TWITTER V. THREADS – THE CONCEPT OF TRADE SECRETS IN NIGERIA

INTRODUCTION

Sometime in 2023, it was reported that a lawyer for Twitter had sent a letter to Meta CEO Mark Zuckerberg complaining about Meta's new Threads app. Twitter claimed that it "has serious concerns that Meta Platforms (Meta) has engaged in systematic, wilful and unlawful misappropriation of Twitter's trade secrets and other intellectual property". The letter from longtime Elon Musk attorney Alex Spiro alleged that Meta’s new Twitter clone was built by former Twitter employees “deliberately assigned” to develop a “copycat” app

This is not the first time that claims of misuse of trade secrets have been raised in the tech industry. Back in 2018 Google-owned self-driving car company Waymo sued Uber claiming trade secrets theft, after a Waymo executive joined Uber's self-driving technology team.

This article examines the concept of trade secrets in Nigeria, qualification, protection and defence to trade secret claims.

WHAT ARE TRADE SECRETS?

Walter Goode in the Dictionary of Trade Policy Terms defines trade secrets as information deriving its value from not being known to the public, competitors or other parties who may gain benefits from its disclosure or use. It is a formula, process, device, or other business information that is kept confidential to maintain an advantage over competitors.

WHAT QUALIFIES AS A TRADE SECRET?

Some conditions must exist to qualify information as a trade secret. Though there are general standards for qualification as a trade secret, every country may have a variation as to conditions for qualification.

Art. 39 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) provides for criteria in determining what constitute trade secret as follows:

a.??????The information must be secret (i.e. it is not generally known among, or readily accessible to, circles that normally deal with the kind of information in question).

b.??????It must have commercial value because it is a secret.

c.??????It must have been subject to reasonable steps by the rightful holder of the information to keep it secret (e.g., through confidentiality agreements)

PROTECTION OF TRADE SECRETS IN NIGERIA?

In Nigeria, trade secrets require no registration for protection. Unlike patents, trademarks and designs, trade secrets are protected without procedural formalities. It is advisable to consider whether the trade secret is patentable and, if so, whether it would not be better to protect the secret by patent.

Where it is not patentable, the following are practice steps should be employed in ensuring the protection of confidential information and trade secrets:

a.??????Few people in the organisation should know the trade secret and they must know that it is confidential.

b.??????Records going out of the organisation should be marked as “Confidential” or “Top Secret” with a stamp or watermark.

c.??????Computer works should be pass-worded to restrict electronic access.

d.??????Storing records and specimens when not in use in locations that are secured.

e.??????Ensuring all employed Staff sign Confidential Agreement with the employer. Such agreements bind the employee to non-disclosure of confidential information or trade secrets even after leaving the employment for even years as may be agreed in the contract of employment.

f.???????Ensuring the signing of confidentiality agreements with business partners whenever disclosing confidential information.

DISTINCTION BETWEEN TRADE SECRETS AND SKILL/KNOWLEDGE OF AN EMPLOYEE

The distinction between trade secrets and skill and knowledge an employee may take away on leaving employment was well considered by the Court in Mulcaire V. Phillips (2012) LPELR-17910(UKSC), the Court held thus:

"Many [employers] have great difficulty in understanding the distinction between genuine trade secrets and skill and knowledge which the employee may take away with him ... . Judges dealing with ex parte applications are usually also at a disadvantage in dealing with alleged confidential knowledge of technical processes described in technical languages, such as the electric circuitry in this case. It may look like magic but turn out merely to embody a principle discovered by Faraday or Ampere."

It is only if the information is indeed confidential in the eyes of the law that a claim for breach of confidence (that is, infringement of a right of confidence) can arise. Conversely, not all confidential information can, in normal usage, be described as technical or commercial.

DEFENCE TO TRADE SECRETS

A plaintiff in a trade secret action must be able to prove that he has a secrecy interest which can be recognised by the law. To demonstrate this, the plaintiff must show that the secret information is of independent commercial value and that reasonable steps have been taken by him to maintain the secrecy of the information. An action for trade secret misappropriation can only arise where the secret is gained through improper means such as theft, bribery, misrepresentation, breach or inducement of a breach of duty to maintain secrecy, or espionage through electronic or other means.

The dictums in Belot v. Pressdram (1973), All ER 241 and A. G. v. Guardian Newspaper(1980) (No 2) 1 AC 109 ?is apt in defence of breach of trade secrets. Some of the defence can be deducted from the above dictums:

a.??????Public interest is the paramount defence of confidentiality;

b.??????No obligation to keep secret;

c.??????That the information so revealed is not that confidential to qualify for secrecy; and,

d.???????Legally demanded in the court of judicial proceedings.

CONCLUSION

Intellectual property is ever-evolving with advancements in technology. There is thus a need for threshold legislation to adequately protect trade secrets in Nigeria with clearly defined remedies to curtail infringing activities.

This will provide a safe environment for enterprises to thrive by ensuring that the intellectual property of small, medium, as well as large-scale businesses is well protected through all available remedies.