Trade Secrets
Trade secrets often account for a considerable part of the value of innovative companies. In the European Union, the protection of trade secrets has been reinforced by a directive since 2016.
Definition
According to the Directive, a trade secret must fulfil the following conditions:
It is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
It has commercial value because it is secret.
It has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret
Protection
Unlike the situation for patents, it is not possible to protect trade secrets by registration but it is key to identify the secret information and to think through the protection of the secrecy so as to implement reasonable steps. Confidentiality agreements are one example of such reasonable steps. Where technology is involved, having a confidentiality agreement drafted by a person having both technical and legal skills may be advantageous.
Remedies
The rightholder can take court action against the unlawful acquisition, use or disclosure of a trade secret to obtain e.g. an injunction against the unlawful use and damages payments. Frequently, disputes from NDAs are submitted to arbitration.
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