March 26, 2022
It is common to find one or the other of these terms, when it is not several at the same time, in the contracts in particular of distribution and collaboration. While each of these terms has a translation that seems well established, it appears on reflection that the underlying meaning evolves in practice and that it may be necessary to question this firmly established translation.
Consider four examples from practice:
1- In a professional risk insurance contract, we find the following definition: “Trade Secret means information, including a formula, compilation, pattern, program, device, method, process or technique that derives independent economic value, actual or potential , from not being generally known and not readily ascertainable through proper means by another person who can obtain economic advantage from its disclosure or use”.
The error, which was not made, would have been to translate “trade secret” by “commercial secret” which is a Canadianism, the dictionary proposing this translation justifying it as being an incorporeal asset consisting of the elements as listed below above that the company considers confidential. In French the word “secret” contains the notion of something hidden that its holder must not disclose and “commercial” is foreign to the above list except for its economic consequences.
In French, the traditional translation is “secret de fabrication ou de fabrication”, that is to say the manufacturing process offering a practical or commercial interest, implemented by an industrialist in a machine or mechanism and kept hidden from his competitors, which is protected from disclosure by factory personnel. As such, the notion appears originally, in the Labor Code and now in the Intellectual Property Code which devotes a title to the protection of technical knowledge and, in this, a chapter on “trade secrets “.
If the code provides for a penal sanction against the employee who reveals the secret to the outside, the French courts have been responsible for building over the years a whole jurisprudential construction which sheds light on the various components of the aforementioned definition. One may wonder if the translation by “trade secret” is not a little narrow with regard to the interests that one intends to protect.
It should be noted that the definition proposed by the English text includes as the first element the “information … that derives independent economic value … from not being generally known … through proper means …” which the translator has translated by the term “confidential information” although the classic term “confidential information” is not expressly indicated. This brings us to the next observation.
2- In a framework contract for the provision of Translation Agencies UK services, there is an article entitled: “Confidentiality”:
The Parties acknowledge that performance of their respective rights and obligations under this Agreement may involve them having access to information which is confidential to the other Party (“Confidential Information”).
The Parties agree …: (a) to keep confidential all Confidential Information …; (b) not to challenge the validity of any proprietary rights attaching to any Confidential Information …; »
The translator has correctly translated “confidential information” as “confidential information” that the party receiving it undertakes to keep confidential, that is to say secret. By this clause, the parties intend to protect themselves against their disclosure and we find ourselves within the framework of the trade secret. The scope of this obligation of confidentiality is generally the broadest possible but it can be subject to clarification as in the following example.
3- In a research contract, the article entitled “Confidentiality” stipulates: “the Parties shall keep confidential and not disclose to others, all information about this Agreement, and all data and conclusions from the Research Project. … For the purposes of this Agreement “Confidential Information” means all information of a confidential nature disclosed (whether in writing, orally or by any other means) by the Parties during the term of this Agreement including, and without limitation, any information relating to the University’s Background Intellectual Property and its operations, processes, business, dealings, transactions and affairs or those of any member of the University”.
4- Finally, in a collaboration agreement, we can read under the title: “Proprietary/confidential information: The provisions of this clause shall apply between the Parties with respect to all information which passes between the Parties. For the purposes of this agreement such information shall be referred to as proprietary information”.
The stipulation, explained in this paragraph, is still very general but its interest for the translator lies in the use of the term “proprietary information” first coupled with “confidential” in the title then used exclusively thereafter. Why use this term generally translated as “proprietary information” or “private information”? In fact, this term comes from the American Trade secret law which provides for this information a protectable right (protectable interest).
Although this is not the case in the examples quoted, we frequently find the term “know-how” which has been officially translated in France as “savoir-faire”. By this is meant labor-intensive processes or tricks developed by one manufacturer and ignored by others, kept secret and producing economic effects. In a 1996 regulation, the European Commission created “licensing agreements on technical information not protected by patents (for example, descriptions of manufacturing processes, recipes, formulas, models or drawings), commonly called “knowledge– To do” “. These are know-how license agreements. This same regulation defines “know-how” as being “a set of technical information which is secret, substantial and identified in any appropriate way”, these last three terms being, below, precisely defined. It can be seen that they largely cover the elements constituting the “trade secret” or trade secret!
One can therefore wonder if it would not be appropriate to translate “trade secret” by “know-how” in the broad sense as suggested to me by a colleague in the translation of example 1? The idea is interesting but it comes up against the fact that the French Economic and Financial Terminology Commission adopted in 1990 the word “savoir-faire” to translate “know-how”. According to this colleague, the concept of know-how encompasses that of a trade secret. I would add that it also encompasses the notion of confidential information within the meaning of the European directive.
All these notions are closely linked and include common elements, in particular secrecy. However, their use is not indifferent because it is necessary to take into account a psychological observation which is the following: in the mind of the lawyer, reader of this kind of translation, each word triggers chain reactions which lead him to operate deductions that must quickly lead to a conclusion. If the starting word is inappropriate, for example if it reads “know-how” instead of “trade secret”, he will quickly draw conclusions which may prove to be unsuitable until he has re-established the intention of the original drafter. Therefore, in my opinion,