The formula for Coca-Cola is not patented. It is not protected by copyright or trademark or any other federal intellectual property statute. It is the canonical example of a trade secret—protected only by its own secrecy, and a constellation of contractual obligations, state statutes and common law rights known generally as “trade secret law.” Although there is no federal statute protecting trade secrets, 47 states have adopted some version of the Uniform Trade Secrets Act,1 which defines the elements and extent of trade secret protection. But New York has not. In fact, New York has no trade secret statute at all. New York courts have instead adopted the definition of trade secrets set out in the Restatement (First) of Torts §757: “‘any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.’”2
Under that broad definition, New York courts have applied trade secret protection to a wide range of business information—from customer lists to industrial processes—and that protection can be critical to a business. For example, an employer may need to give employees access to sensitive information for use in their jobs, but also want to prevent them from taking it to a competitor if they leave. A non-compete agreement can accomplish that, but New York courts will examine such agreements carefully to make sure they are tailored to provide legitimate protection.3 Similarly, collaborations between businesses may require the parties to share sensitive business information. Such collaborations may rely on common law trade secret protection, or supplement it with written non-disclosure agreements, but again those agreements must be carefully drafted to ensure that the parties are actually getting the protection they bargained for.
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