This clause requires you to mark documents "Confidential" or use similar labels so the other party knows information is protected. Without this requirement, disputes arise about whether something was actually meant to be confidential. The clause creates a practical system: if you don't mark it, the other party can argue they didn't know it was secret. UK and US courts recognize that reasonable marking practices help prove intent to keep information confidential. Example: An unmarked email with pricing data might not be protected, but one marked "CONFIDENTIAL" clearly signals the sender's intent.
If you're disclosing sensitive information, insist on a marking requirement—it's your evidence that you treated it as confidential. Make the requirement practical (email subject lines count, not just printed labels). If you're receiving information, resist overly strict marking rules that would let the other party claim unmarked data isn't confidential—add language like "whether or not marked, information disclosed in confidence is protected." ---
Frequently Asked Questions
What does this clause mean in simple terms?
This clause requires you to mark documents "Confidential" or use similar labels so the other party knows information is protected.
Why should I care about this clause?
Without this requirement, disputes arise about whether something was actually meant to be confidential.
What are my options?
The clause creates a practical system: if you don't mark it, the other party can argue they didn't know it was secret.
How does this affect small businesses?
UK and US courts recognize that reasonable marking practices help prove intent to keep information confidential.