Intellectual Property: All about Trade Secrets

Written by Kevin Seo 
​JD Candidate 2024 | UCalgary Law

A trade secret is a type of intellectual property which derives its value from its secrecy. This can come in the form of secret technology, secret processes, secret formulas, and other confidential information not disclosed to the public.[1] Considering the immense value that can be generated from trade secrets, corporations should consider a number of key factors to safeguard proprietary information. This article will discuss the basic ins-and-outs of trade secret law in Canada.

Unlike other forms of intellectual property such as patents and copyrights, there is no Canadian legislation related to trade secrets or a formal process for trade secret registration. Instead, trade secrets are largely based on common law precedent and are protected by the courts through tort claims, breaches of contract, or breaches of confidence.[2] The one caveat is that trade secrets may be caught under the Security of Information Act, which deals with the fraudulent theft of trade secrets owned by foreign entities. [3]

For information to be considered a trade secret, the information must be confidential, and the owner of that information must have taken reasonable steps to maintain its secrecy.[4] In terms of confidentiality, this would be established if the information was only known to a select group of people and was not disclosed to the wider public.[5] Some measures which may be considered reasonable steps to maintain secrecy may include physically locking up tangible information, keeping an inventory of all intellectual property, and requiring employees to sign non-disclosure agreements prior to and following the course of employment.[6] There is also a requirement that the trade secrets must have sufficient economic value, which provides a competitive advantage or have an industrial or commercial application.[7]

One distinctive feature of trades secrets is that there is no expiry date for protection, and can survive in perpetuity, as long as the information remains a secret. This characteristic is useful, as inventors may use trade secrets as a cost-effective measure to protect their innovations with no time limitations. Furthermore, trade secret can be used to protect information which would not be protected by other forms of Intellectual property, such as consumer data, market research, and recipes.


[1] Canadian Intellectual Property Office. “Government of Canada”, (19 March 2021), online: Government of Canada, Innovation, Science and Economic Development Canada, Office of the Deputy Minister, Canadian Intellectual Property Office <https://ised-isde.canada.ca/site/canadian-intellectual-property-office/en/what-intellectual-property/what-trade-secret>
[2] “Trade secrets in Canada”, online: Heer Law <https://www.heerlaw.com/basics-trade-secrets>
[3] Security of Information Act (R.S.C., 1985, c. O-5)
[4] “Protecting your trade secrets”, online: Osler, Hoskin & Harcourt LLP <https://www.osler.com/en/resources/business-in-canada/browse-topics/intellectual-property/protecting-your-trade-secrets>
[5] Ibid.
[6] Ibid.
[7] Ibid