A comparative analysis of the approaches to trade secrets protection between Namibia and the USA

• Author: Iitembu, J.A.
• DOI: https://doi.org/10.47348/JCCL/V7/i2a4
• Published date: 09 November 2022
• Date: 09 November 2022
• Citation: (2021) 7(2) JCCL&P 83
• Pages: 83-100

https://doi.org/10.47348/JCCL/V7/i2a4

83

A COMPARATIVE ANALYSIS OF THE

APPROACHES TO TRADE SECRETS

PROTECTION BETWEEN NAMIBIA

AND THE USA

JOHANNES A IITEMBU*

Senior Lecturer, Department of Fisheries and Ocean Sciences,

University of Namibia

LINEEKELA USEBIU†

Senior Lecturer, School of Law, University of Namibia

Abstract

The adequacy of trade secret protection is one of the key pillars for

promoting domestic and foreign-derived innovations. Therefore,

various countries have chosen varying approaches that they deem

adequate to protect the trade secrets of their citizens and foreigners.

This article compares the approaches to protecting trade secrets

in Namibia and the United States of America (USA). The analysis

demonstrates that the USA approach better protects trade secrets,

whether domestic or foreign, as it removes many uncertainties and

brings simplicity and uniformity to litigating trade secrets issues,

including clarity on available civil or criminal remedies. For members

of the World Trade Organization (WTO), having an adequate statute

for the protection of trade secrets also removes the weakness of the

Trade-Related Aspects of Intellectual Property Rights (TRIPS), which

only requires that members enforce IPR through domestic law

enforcement in the member state. Developing nations, like Namibia,

can therefore adopt a statutory approach as applied in developed

nations like the USA. Adequate protection of trade secrets will not

only increase domestic innovation but may also lead to ease of

collaboration with developed nations in innovation-related projects.

* LLB (UNAM), BSc (UNAM), MSc (University of Tromso), PhD (Rhodes University).

† Bjuris, LLB (UNAM), LLM (Stell), PDHE (UNAM), PhD Candidate (UCT).

(2021) 7(2) JCCL&P 83

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84

(2021) 7(2) JOURNAL OF CORPORATE AND COMMERCIAL LAW & PRACTICE

https://doi.org/10.47348/JCCL/V7/i2a4

Keywords: intellectual property, trade secrets, statutory approach,

innovation, TRIPS.

I INTRODUCTION

The economic health of nations and their companies’ competitiveness

is primarily determined by their ability to capture the economic

benefits from scientific and technological innovations.1 This is

because scientific and technological innovations are considered

to be the driving forces behind economic growth and product

competitiveness.2 Innovation involves generating novel ideas,

which can be used to develop a new product, process, or service.3

The innovation method combines science, technology, economics

and management,4 and some of the innovative ideas and products

can have substantial commercial potential. Therefore, researchers

and companies funding research and development protect their

innovation through intellectual property laws.5 Governments

have encouraged industrial development and economic growth

for centuries by protecting intellectual property rights (IPR).6

Ultimately, several nations have established national IPR systems

deemed appropriate for their national economic, political, and social

context.7

The protection of scientific innovations is mainly done through

patent rights.8 A patent right is given to an inventor to exclude others

from commercially exploiting their invention for a limited period

in exchange for the disclosure of the invention.9 The protection of

innovation, creations or inventions can also be protected through

copyrights and trademarks.10 However, some inventions are not

disclosed to the public and are protected as trade secrets.11 Trade

1 M B Wallerstein, M E Magee & R A Schoen Global Intellectual Property Rights

Issues in Perspective: A Concluding Panel Discussion. Office of International Affairs

National Research Council, Washington (1993) 4.

2 I Marisova Intellectual Property Protection in Innovation Projects. KTH Architecture

and the Built Environment, Stockholm (2012) 2.

3 T Kogabayev & A Maziliauskas ‘The definition and classification of innovation’

(2017) 8 HOLISTICA – Journal of Business and Public Administration 59–72.

4 B Twiss & M Goodridge Managing Technology. for Competitive Advantage: Integrating

Technological and Organisational Development: From Strategy to Action (1989) 234.

5 D M Hogle ‘Comment copyright for innovative biotechnological patent or trade

secret protection’ (1990) 5 High Technology Law Journal 75–127.

6 Wallerstein et al op cit note 1 at 3.

7 Ibid at 4.

8 Ibid at 11.

9 World Intellectual Property Organization WIPO Intellectual Property Handbook:

Policy, Law and Use (2008) 17.

10 Ibid at 17.

11 Ibid.

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