If the Coca-Cola Formula is Not a Secret Anymore, What Is? by Andrew Pearce May 21, 2103
A Georgia man claims he found the original Coca-Cola formula in a box of old papers from an estate sale. Now, it can be yours for the Buy-It-Now price of $15,000,000, although the starting bid on Cliff Kluge’s eBay listing is only $5,000,000. Coke denies the claim, saying the only real formula remains heavily guarded in a vault in Atlanta.
I often say there are two undisputed trade secrets in America: the Coca-Cola formula and KFC’s secret herbs and spices recipe. I must also acknowledge, however, that internet sites claim to reveal KFC’s secret recipe, so maybe we are down to one.
For everyone else seeking to protect information as confidential or a trade secret, the ability to effectively establish such information as confidential can be critical to the operation of their business. Texas courts have defined a trade secret as any formula, pattern, device or compilation of information which is used in one's business and presents an opportunity to obtain an advantage over competitors who do not know or use it. To determine whether a party has a trade secret, Texas juries have been asked to consider the following:
the extent to which the information is known outside of Plaintiff's business;
the extent to which it is known by employees and others involved in Plaintiff's business;
the extent of the measures taken by Plaintiff to guard the secrecy of the information;
the value of the information to Plaintiff and its competitors;
the amount of effort or money expended by Plaintiff in developing the information; and
the ease or difficulty with which the information could be properly acquired or duplicated by others.
Similarly, “confidential information” has been instructed to mean any process, information or compilation of information, formula, pattern or device which is used in one's business and which gives an opportunity to obtain an advantage over competitors who do not know of or use it. Matters of public knowledge or of general knowledge in an industry cannot be appropriated as confidential. The personal efficiency, inventiveness, skills and experience which an employee develops through his work belong to him and not his former employer.
Simply stated, courts require that to be entitled to common-law protection, a trade secret must be secret. Although simple on its face, this issue becomes extremely complicated in the context of seeking to prevent the alleged misuse of a party’s trade secrets, such as through injunctive relief, as well as determining the enforceability of non-competition agreements premised on the existence of confidential information.
BoyarMiller Breakfast Forum: Perspectives on the Energy Industry
Thursday, March 21, 2013 The Houstonian Hotel
Watch video from recent forums, download past presentations and browse our photo gallery.
At BoyarMiller we are committed to realizing our Mission each day in how we serve our clients, friends and community. It is why we approach our work with a focused energy and what makes us a Practice with Purpose.
Unless Otherwise Noted, Our Lawyers Are Not Certified by The Texas Board of Legal Specialization, Chairman - Chris Hanslik
Connect with us
While we would like to hear from you, we cannot enter into an attorney-client relationship until we know that doing so will not create a conflict-of-interest based upon the clients we represent. Accordingly, please do not send us any detailed information (specifically, no information that needs to remain confidential) about any matter that may involve you until you receive a written letter from us that we represent you (an engagement letter).
The best way for you to initiate a possible representation is to call BoyarMiller at 713-850-7766. We will make every effort to put you in touch with a lawyer suited to handle your matter. When you receive an engagement letter from a BoyarMiller lawyer, you will be our client, and we may exchange information freely and confidentially.