Leech Tishman

A federal court in the Eastern District of Pennsylvania ruled that a baking company had not violated an NDA because the so-called “secrets” at issue were not actually trade secrets.

Background

Sweet Street Desserts, Inc. sued Better Bakery, LLC alleging breach of a 2011 non-disclosure agreement (NDA).

The bakeries had been discussing the potential for working together to design a pretzel sandwich product.

The proposed pretzel sandwich included “open ends and precision slits on the top of the product, which bloom open during baking to reveal the contents inside.”

Eventually the deal fell through and each company made its own type of pretzel sandwich.

Better Bakery contended that the only specifications of the sandwiches that Sweet Street asserted as proprietary were “open ends, length of 6 to 7 inches, slits, and crumbs.”

Sweet Street asserted that it also deemed proprietary “the overall look of the product, the bloom, the color, and the manufacturing process related to the proteins.”

NDA Terms

As the court noted,

The NDA provides an exception to Confidential Information which “. . .(c) was in the recipient’s possession prior to disclosure, as evidenced by the recipient’s written records, and was not the subject of an earlier confidential relationship with the party that disclosed such Confidential Information. . .” [cite] The NDA provides another exception to Confidential Information which “. . .(b) became publicly available after disclosure without breach of this Agreement.

Opinion

Applying Pennsylvania’s implementation of the Uniform Trade Secrets Act, the court concluded that the complaint and discovery responses were “void of any facts indicative of a trade secret.”

The court agreed with Better Baker’s witness that the size, shape, and appearance of the product could not function as trade secrets “because they are entirely visible to anyone examining the product, which is offered for sale to the public.”

The case is Sweet Street Desserts, Inc. v. Better Bakery, LLC.

Takeaway

It is important to remember that an NDA will not necessary protect ALL information disclosed pursuant to it. In order to be protected, information must actually BE confidential or a trade secret at the time it is disclosed.

About Us

Leech Tishman’s Intellectual Property Group is based in Pasadena, California with a team of highly-regarded legal professionals with prosecution and litigation expertise in the fields of patent, trademark, copyright, and trade secrets.

Please also visit us online for more information about our services.

Photo Attribution: “BrezelnSalz02 (cropped)” by Sundar1. Licensed under CC BY-SA 3.0 via Commons.

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