Are coworking companies bound by legal precedent not to use the intellectual property nor trade secrets of its customers?

Question

The companies which operate coworking facilities are in a position to learn a lot about a person's business. Every facility I've seen is blanketed with cameras, potentially including microphones, the internet connection is provided and monitored by them, and their staff greets every visitor for a meeting.

I've reviewed the contracts from a few of these companies and was surprised to discover they do not explicitly state they will limit their use of information they learn about their customers' businesses merely to the realm of providing the service to the customers.

One would expect at least a simple and clear statement that customer trade secrets and intellectual property will not be used by nor shared by the coworking company. But no such statement is provided.

Is there something I am not understanding here? For example, is there overarching legal precedent (which wouldn't be included in the contract) that protects a small business if they use one of these facilities?

To be clear, I am not talking about protections from other users of the coworking facility. I am talking about protection from the owner of the coworking facility itself and its employees.

Answer 1

There are several kinds of intellectual property and related rights that could be implicated by coworking considerations. This answer provides answers where it is clear and leaves open the legal issues where I don't know the answer.

1. Trademarks and Trade Names. A coworking company might not infringe your trademark if used merely to identify the trademarks of its tenants (e.g. for marketing purposes to show the businesses that use its services), but could not market products using your trademark. Certainly, a coworking company could refer to its tenant by their trade names but could not purport to be the owner of those trade names.

2. Copyrights. A coworking company does not gain any rights in your copyrighted material merely by providing office space for them. Merely letting someone see copyrighted material does not provide a license to copy or republish it, any more than someone reading your book purchased at a book store has a right to copy or republish the book.

3. Trade secrets. A trade secret gains its legal force by the trade secret owner taking reasonable measures to keep it secret, such as putting non-disclosure agreements in place with people who you allow to see it and keeping it protected with locks, closed doors, passwords, and encryption. What is sufficient to make efforts to keep a trade secret secret is a fact specific case by case inquiry. Generally speaking, if one leaves trade secret information in plain view in a coworking space, one would lose trade secret protection for that trade secret, unless there was an express non-disclosure agreement with the coworking facility and all of the other users of the space who could see the trade secret material.

4. Patents Once a patent is obtained, it doesn't matter who can see the patent which is a matter of public record anyway, so the coworking company gets no rights at that point. But, when someone is developing an idea that you would like to patent, disclosure of the patented idea in a sufficiently public way could make the idea part of "prior art" that prohibits anyone from patenting it, and if someone else patents the idea using insight from someone else without using illicit means, they will often get the patent in a first to file system (which is predominant, if not universal, in world patent systems now). I'm not enough of a patent law expert to spell out the boundaries of what could cause your idea to become prior art or permit a coworkering firm or someone else working there to appropriate your work and patent it legally. Swiss law regarding implied duties of landlords/privacy and, if it exists, coworking, would also be pertinent and is beyond the scope of my knowledge. E.U. privacy regulations (or copycat versions of them in Switzerland) like the GDPR could be a factor as well. In the face of uncertainty, the better course of action would be "better safe than sorry." The steps necessary to preserve as a trade secret an idea that could potentially be patented is probably sufficient in most cases, but the same level of vigilance might not be necessary to preserve a patentable idea and prevent another person seeing it from appropriating it.

5. Other Confidentiality Obligations Another related issue is that many people have legal obligations to keep certain kinds of information they obtain in the course of their occupations secret and confidential from all but certain people. These people include lawyers, medical professionals, health insurance companies, teachers and school administrators, soldiers, psychotherapists, bankers, accountants, certain kinds of civil servants dealing with certain kinds of information, social science researchers, clergy, scientists, people subject to non-disclosure agreements, and web site operators. It isn't always obvious that these confidentiality obligations can be met in a co-working environment.