The Legal Framework for the Protection of Trade Secrets as Intellectual Property In Nigeria

October 3, 2025

‍1. Introduction

In Nigeria, Intellectual Property (IP) Rights are generally categorised into Copyright, Trademarks, Patents, and Industrial Designs. These IP rights are contained in the provisions of the Nigerian Copyrights Act 2022, (NCA) the Trademark Act, (TMA) and the Patent and Design Act, (PDA). These laws taken together are herein referred to as “domestic laws in Nigeria” (DLN) and constitutes the legal framework for the protection of Intellectual Property in Nigeria. Although the above-mentioned statutes are the most referenced laws from which IP rights are derived in Nigeria, it is worthy of note that the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), recognises a distinct type of IP rights that is applicable in Nigeria known as Trade Secrets.

A trade secret is generallydefined under Nigerian jurisprudence and international practice as “A formula, process,device, or other business information that is kept confidential to maintain anadvantage over competitors; information — including a formula, pattern,compilation, program, device, method, technique, or process”¹Although Trade Secret is a sub-category of IP rights not captured by nomenclature in the DLN, some characteristics of some forms or types of Trade Secret feature in sub-categories of IP rights under the Copyright Act. For instance, Literary works are eligible for protection under the Copyright Act,if

(a) effort was put to work, to give it an original character; and

(b) the work has been fixed in any medium of expression from which it can be perceived and communicated.²‍

Examples of literary works eligible for protection includes; compilation of information, technical information, business plans, technical drawing or sketches, proprietary recipes, content of laboratory note books, source code, electronic data compilations, etc. while of the above examples are literary works subject to copyright, when effort have been expended to give it originality, and have been put in a medium of expression capable of being perceived and communicated, they also form types of Trade Secret.

However, it is worthy of note, that while the Copyright Act protects the IP rights in the Literary work, Trade Secret inter-alia protects the processes, methods, procedures, recipes, pattern of administration captured technical information, content oflaboratory notebooks, technical drawings in literary works, and the specific outcomes of the usage or application of literary works.

It is, however, pertinent to note that while literary works enjoy protection in the full glare of the public accessibility, Trade Secret thrives in secret paths and obscurity. The potency of Trade Secret is in secrecy, because unlike literary works, it seeks to protect the process and the outcome for competitive advantage. Thus, while the well-guarded recipe for Coca-Cola, may be containedin literary work that may be subject to Copyright, it is obscured as a Trade Secret to prevent the duplication of the outcome of that recipe. Trade Secretmay include patentable works eligible under the PDA, it is necessary to stressthat the goal is to keep secret, and such works when kept secret are protectedby law from unlawful usage, or exposure. Trade Secrets may also overlap withpatentable works eligible under the PDA. However, once an investor chooses todisclose and register under the PDA, secrecy is lost. Where secrecy ispreserved, protection under the Trade Secret Law applies, particularly againstunlawful use or disclosure. This work contains the Legal framework for theprotection of Trade Secret in Nigeria.

2. What is Trade secret?

Trade Secret can be defined as; “A formula, process, device, or other business information that is kept confidential in a bid to maintain an advantage over competitors; or an information including a formula, pattern, compilation, program, device, method, technique, or process”.³ Trade secrets are IP rights on confidential information which may be sold or licensed.⁴

Trade Secrets are simply IP rights on secret information with commercial value that gives a competitive advantage to the owner over competitors. World Intellectual Property Organization ⁵ defined Trade Secret as any information that is:

(1)not generally known to the relevant business circles or to the public;

(2)confers some sort of economic benefit on its owner, deriving specifically fromits secrecy rather than mere intrinsic value; and

(3)the subject of reasonable efforts to maintain its secrecy. A trade secretcontinues for as long as the information is maintained as a trade secret.

There are several typesof Trade Secret, these include;

· Technical information, such asinformation concerning manufacturing processes, pharmaceutical test data,designs and drawings of computer programs; and

· Commercial information, such asdistribution methods, list of suppliers and clients, and advertisingstrategies. Other examples of potential trade secrets may include technical,scientific or financial information, such as business plans, businessprocesses, list of key customers, list of reliable or special suppliers,product specifications, product characteristics, purchase prices of key rawmaterials, test data, technical drawing or sketches, engineeringspecifications, proprietary recipes, formulas.⁶

3. Why is the protection of trade secret important?

The protection of tradesecrets is a critical aspect of intellectual property management, as itsafeguards confidential business information that provides a company with acompetitive advantage. Protecting trade secrets is important for the followingreasons;

i. To prevent the loss of revenue and business opportunity to businesses or people due to unauthorized access bythird parties who did not bear the risk of investing in the development, or theacquisition of that information that constitutes a Trade Secret.

ii. To promote fair business practice and incentivise innovation.

iii. To gain competitive advantage and prevent competitors from unfairly benefiting from their investment.

iv. For business sustainability, continuity and legacy.

v. To protect investment and dividends.

4. How does the law protect trade secret in Nigeria?

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIP Agreement) provides the legal framework for the Protection of Trade Secret in Nigeria. The Agreement is an International Treaty facilitated by the World Trade Organisation (WTO). Nigeria is a signatory to this agreement but is yet to domesticate it in accordance with the provision of section 12 of the Constitution of the Federal Republic of Nigeria (as amended). Apparently, ideas, procedures, processes, formats, systems, methods of operation, concepts, principles, discoveries or mere data, which may constitute Trade Secret, are ineligible for Copyright under the Copyright Act, but are protected from unlawful divulgement under the TRIP agreement.

Accordingly, TRIPSprovisions are not directly enforceable in Nigerian courts unless incorporatedinto domestic law. However, Nigerian courts have applied principles of equity,contract, and common law to protect trade secrets, particularly through doctrinesof breach of confidence, fiduciary duty, and restrictive covenants.

Article 39(2) of theTRIP Agreement mandates members to protect undisclosed information as capturedin paragraphs (2). Paragraph 2 provides that “Natural and legal persons shall have thepossibility of preventing information lawfully within their control from beingdisclosed to, acquired by, or used by others without their consent in a mannercontrary to honest commercial practices so long as such information:

(a)is secret in thesense that it is not, as a body or in the precise configuration and assembly ofits components, generally known among or readily accessible to persons withinthe circles that normally deal with the kind of information in question;

(b)has commercial value because it is secret; and

(c) has been subject to reasonable steps under the circumstances, by the person lawfully in control ofthe information, to keep it secret.”

Thus, Trade Secret protects novel ideas, procedures, patterns etc., especially when access to such informationis given by privilege, fiduciary relationships, or other kinds of relationships, that require access to or the use of such information for the purposeof achieving the objective of such relationships. The secrecy in this case isnot just about the lack of access, but controlled access within an organisation of information that gives advantage over competitors. And to prevent thedivulgement of such information, intentionally or unintentionally.

The provision of Article 39 in the TRIP agreement is good law, but its authority in Nigeria is persuasive because it is yet to be domesticated. However, reliance has beenmostly placed on law of contract to protect trade secrets, and this issupported by the definition of the phrase "a manner contrary to honestcommercial practices" in the TRIP agreement which mean at least practicessuch as ‘breach of contract,breach of confidence and inducement to breach, and includes the acquisition ofundisclosed information by third parties who knew, or were grossly negligent infailing to know, that such practices were involved in the acquisition. Thus, clauses or contracts such as Non-disclosure Agreements, Non-circumvention Agreements, and other agreements requiring non-disclosure of confidential information, and when such information are termed ‘Trade Secret’ will suffice to protect Trade Secret in Nigeria. Additionally, Nigerian courts have recognized equitable principles such as the duty of confidence in employment and agency relationships, thereby extending protection even outside express contractual terms. In fact, the TRIP Agreement on Trade Secret can become directly enforceable by incorporating the provisions of Article 39 into the terms of contracts.

5. Conclusion

When the Purpose is to protect the use of a literary expression contained in a medium of communication, its moral rights and value of the expression, the Copyrights Act donate its provisions. Where the purpose is to protect rights of inventions and technical drawings from unlawful use, the Patent and Design Act give its covering. However, where the purpose is to protect information, (known to privileged few, or flowing from some sort of professional relationship) because the potency of that information (whether as to processes, operations, strategies, patterns, ideas, formulas, devices, etc.,) is in its obscurity, or secrecy then the law of contract offers its garment with embroidery from the TRIP Agreement.

In the absence of a specific Trade Secrets Act in Nigeria, businesses must rely heavily on confidentiality agreements, employment contracts, and organizational policies to ensure secrecy. Legislative reform to expressly recognize and regulate Trade Secrets in Nigeria would therefore strengthen this important category of intellectual property.

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