Confidential information 

Not every piece of commercially valuable information fits into copyright, a patent, or a trade mark. A client list, a recipe, a negotiating strategy, or a technical process not yet reduced to a patent application may be worth protecting even though no registered right covers it. Equity fills that gap through the action for breach of confidence.

An equitable action, not a registered right

Breach of confidence is a cause of action in equity, with some overlap where confidentiality is also an express or implied term of a contract. It depends on none of the machinery that governs registered rights: no application, no examination, no register, and no fixed statutory term. In principle it can protect information indefinitely, for as long as the information retains the necessary quality of confidence and has not entered the public domain.

The three elements

Coco v AN Clark (Engineers) Ltd [1969] RPC 41¹ requires the plaintiff to establish three things.

• The necessary quality of confidence — the information must not already be public property or public knowledge. It must be identifiable with some precision; a vague assertion that "commercial information" generally was confidential will not succeed. Trivial or already well-known information does not qualify, however sensitive it might feel to the person asserting it.
• Circumstances importing an obligation of confidence — the information must have been imparted in a relationship or context in which the recipient knew, or a reasonable person in their position would have known, that it was given in confidence. This can arise from an express agreement, such as a non-disclosure agreement, but equally from the nature of the relationship itself — employment, professional advice, or commercial negotiations conducted on a confidential footing.
• Unauthorised use to the detriment of the confider — the recipient must have used or disclosed the information without permission, in a way that has caused, or threatens to cause, detriment to the person who confided it. Detriment need not always be narrowly financial.

Relationship to registered IP rights

Breach of confidence sits alongside registered intellectual property rights, not in competition with them. An inventor may deliberately choose secrecy over a patent application, trading the certainty and enforceability of a registered monopoly for the possibility of indefinite protection — at the cost of protection that can be eroded or destroyed through no fault of the confider. Distinguish two things that are often run together. Independent discovery, or lawful reverse engineering of a product the rival legitimately acquired, puts THAT RIVAL beyond reach: they owe no obligation of confidence and can use what they worked out. It does not release the people who ARE bound, and the equitable obligation continues against a confidant for as long as the information retains the necessary quality of confidence. What ends protection generally is the information becoming public — which is what happens if the rival publishes, and which is why the risk is real even though one rival's discovery is not by itself the end of it. The same information may also be recorded in a document that separately attracts copyright, or may relate to a brand or get-up that a trader intends to register as a trade mark once it is ready to be made public. None of these rights displaces the others; a well-advised client typically uses more than one at different stages of a project.

Remedies

The remedies for breach of confidence are equitable and discretionary, reflecting the action's origin. They typically include an injunction restraining further use or disclosure of the information, equitable compensation for loss the confider has suffered, an account of profits where the recipient has gained from the unauthorised use, and an order for delivery-up or destruction of material that embodies the confidential information. This contrasts with the more standardised statutory remedies, including statutory damages provisions, available for infringement of a registered right such as a patent or trade mark.

Applying this in a problem question

1. Identify precisely what information is said to be confidential, and check it is not already public, or too vague to be protected.
2. Identify the circumstances in which it was imparted, and ask whether the recipient knew, or ought reasonably to have known, that it was confidential.
3. Identify the unauthorised use or disclosure, and the detriment — actual or threatened — to the confider.
4. Consider whether a registered right might also be available on the facts, and whether relying on confidentiality is a deliberate strategic choice or simply a fallback.
5. Select the remedy that fits the harm — an injunction to stop future use, or a financial remedy for use that has already occurred.