Wisconsin Trade Secret Infringement & Trade Secret Misappropriation

The business litigation lawyers at Loftus & Eisenberg are well versed in making certain that our clients’ confidential information and trade secrets are protected from infringement and misappropriation.

Most states, including Wisconsin have assumed the Uniform Trade Secret Act (UTSA), which is a model law, or a modified form of the law. A trade secret as stated is material if it discusses a competitive fiscal advantage over the competition which is the subject of practical attempts to maintain its secrecy. If the owner of a trade secret doesn’t reasonably attempt to preserve the information’s concealment, it will not be considered a trade secret.

Trade secret infringement is also referred to as misappropriation. Misappropriation transpires when a party wrongly obtains any type of trade secret or does not adequately make known or uses the trade secret without obtaining permission to do so or by acting with conceivable knowledge that said trade secret was acquired mistakenly, accidently, or unlawfully. Misappropriation can occur either intentionally or unintentionally through negligence.

Misappropriation also comes about when a party divulges or leverages a trade secret without consent when, at the time of disclosure, he or she had reason to know that knowledge of the trade secret was:

• Obtained by inappropriate means
• Disclosed or used by an individual without implied or express consent by the trade secret owner
• Resulted through or from an individual who used improper methods to acquire it
• Acquired with the understanding to preserve its secrecy and/or limit its use
• Taken from or through a person who owed a duty to the Plaintiff to maintain its secrecy or limit its use

Misappropriation can also occur inadvertently before the individual was aware it was a trade secret and that their knowledge of it had been learned accidentally or mistakenly.

Both federal and state law protect trade secrets and it is imperative to obtain legal counsel by attorneys highly experienced in both. The Wisconsin business lawyers at Loftus & Eisenberg are proficient in both state and federal statutes pertaining to trademark infringement and misappropriation.

Timing is also a major factor in regard to misappropriation. Generally speaking, trade secrets aren’t subject to either time or territorial restrictions in the responsibility to protect them but it is essential to obtain the services of a skilled trade secret litigation attorney as soon as you are aware of the breach in confidentiality to ensure all necessary legal steps are taken within the allowable timing.

Damages and attorneys fees can vary case by case with trade secret infringement cases. One element that affects damages is the total amount the Defendant profited through the misappropriation or how much earnings the Plaintiff lost as a consequence. It is not required that damages are computed through a mathematical certainty. Furthermore, it is not necessary that there is undeniable evidence of the specific amount of the loss, but it is required that there is a reasonable basis for the calculation. Punitive damages also vary but assuming the misappropriation is both “willful and malicious” it is possible to get up to double the actual damages. Lastly, the court has the ability to award attorney's fees to the plaintiff, again if there is evidence the misappropriation was "willful and malicious" or if the plaintiff’s claim was made in "bad faith."

Loftus & Eisenberg has over fifty years of experience representing parties on both sides of trade secrets disputes and litigating trade secret disputes in federal courts nationwide.