2021 Georgia Code
Title 10 - Commerce and Trade
Chapter 1 - Selling and Other Trade Practices
Article 27 - Trade Secrets
§ 10-1-762. Injunctive Relief
- Actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional reasonable period of time in appropriate circumstances for reasons including, but not limited to, an elimination of commercial advantage that otherwise would be derived from the misappropriation or where the trade secret ceases to exist due to the fault of the enjoined party or others by improper means.
- In exceptional circumstances, if the court determines that it would be unreasonable to prohibit future use, an injunction may condition future use upon payment of a reasonable royalty for no longer than the period of time for which use could have been prohibited.Exceptional circumstances include, but are not limited to, a material and prejudicial change of position prior to acquiring knowledge or reason to know of misappropriation that renders a prohibitive injunction inequitable.
- In appropriate circumstances, affirmative acts to protect a trade secret may be compelled by court order.
- In no event shall a contract be required in order to maintain an action or to obtain injunctive relief for misappropriation of a trade secret.
(Code 1981, §10-1-762, enacted by Ga. L. 1990, p. 1560, § 1.)Law reviews.
- For article, "Application of the 'Inevitable Disclosure' Doctrine in Georgia," see 4 Ga. St. B. J. 58 (1999). For article, "Georgia's Constitutional Scheme for State Appellate Jurisdiction," see 6 Ga. St. B. J. 24 (2001).
Out-of-state order prohibiting unprivileged testimony.
- Michigan order, by facially prohibiting former corporate litigation consultant from testifying as to matters outside the scope of any privilege, violated Georgia public policy; therefore, the full faith and credit clause did not require the federal district court in Georgia to give full effect to the Michigan court order. Williams v. GMC, 147 F.R.D. 270 (S.D. Ga. 1993).Permanent injunction appropriate.
- After a company in the cable and wire industry developed a logistics system that constituted a trade secret, it was proper to issue a permanent injunction prohibiting a former employee of the company from working in the logistics department of a competitor for five years, or sooner if the competitor independently develops the competitor's own system. Essex Group, Inc. v. Southwire Co., 269 Ga. 553, 501 S.E.2d 501 (1998).Royalty injunction appropriate.
- Trial court did not abuse the court's discretion in imposing a royalty injunction after making findings as to the public's interest in competition, plaintiff's delays in bringing the matter to resolution, and the adequacy of a royalty to protect the parties' respective interests. Electronic Data Sys. Corp. v. Heinemann, 268 Ga. 755, 493 S.E.2d 132 (1997).Injunction blocking use of misappropriated trade secret appropriate.
- Non-compete clause in a Software Agreement between an employer and employee was unenforceable as a restraint of trade under Ga. Const. 1983, Art. III, Sec. VI, Para. V(c), because it was unlimited as to time and territory. However, under O.C.G.A. § 10-1-762(d), the employee was prohibited from using a software version that incorporated the employer's trade secrets and confidential information, regardless of the non-compete clause. Coleman v. Retina Consultants, P.C., 286 Ga. 317, 687 S.E.2d 457 (2009).Inevitable disclosure doctrine.
- Inevitable disclosure doctrine is not an independent claim under which a trial court may enjoin an employee from working for an employer or disclosing trade secrets. Holton v. Physician Oncology Servs., LP, 292 Ga. 864, 742 S.E.2d 702 (2013).Interlocutory injunction inappropriate.
- Trial court erred, in part, by ordering an interlocutory injunction prohibiting a former employee from working in an executive capacity for a particular competitor of the former employer for one year based on the inevitable disclosure doctrine because a stand-alone claim under the doctrine, untethered from the provisions of Georgia's trade secret statute, O.C.G.A. § 10-1-760 et seq., was not cognizable in Georgia. Holton v. Physician Oncology Servs., LP, 292 Ga. 864, 742 S.E.2d 702 (2013).
Cited in CMAX/Cleveland, Inc. v. UCR, Inc., 804 F. Supp. 337 (M.D. Ga. 1992); Camp Creek Hospitality Inns, Inc. v. Sheraton Franchise Corp., 130 F.3d 1009 (11th Cir. 1997).
OPINIONS OF THE ATTORNEY GENERAL
Applicability to state trade secrets.
- State entity contending that information requested pursuant to the Open Records Act, § 50-18-70 et seq., constitutes a trade secret to another, may exercise the entity's rights to protect the information under O.C.G.A. § 10-1-762. 1994 Op. Att'y Gen. No. 94-15.
- Applicability of inevitable disclosure doctrine barring employment of competitor's former employee, 36 A.L.R.6th 537.