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Trading secrets safely in Europe (Brands & IP Newsnotes - Issue 2)

28 March 2016

In December 2015, while most of us were busy wrapping presents and eating mince pies, the representatives of the European Parliament and Council agreed the text of the Trade Secrets Directive.

The Directive is expected to come into force later this month and Member States will have two years to implement its provisions in national law. The Directive aims to harmonise the protection of trade secrets across member states to increase innovation and assist with cross border R&D. It provides minimum levels of protection for trade secrets across Europe, including in the course of legal proceedings. Businesses across Europe will have civil means through which they can stop unlawful use and further disclosure of misappropriated trade secrets, including a basis for removing goods from the market that have been manufactured on the basis of illegally acquired trade secrets.

Mixed reviews

Some commentators argue that the Directive is unnecessary. However, protection in Europe is patchy and inconsistent. In some jurisdictions there are currently no uniform procedures to keep trade secrets confidential in litigation; in others, there is no access to injunctive relief and no protection for whistle blowers. That companies operating across Europe can enjoy uniform protection for their trade secrets is surely positive. However, questions remain over several definitions in the Directive which may need clarification. No doubt there will be references to the CJEU.

Get your stamps out

Given steps need to be taken to protect the confidential information at issue for it to fall within the new definition of ‘trade secret’, companies would be wise to look at their policies. Marking documents as confidential and considering who has access to certain information and whether or not everyone that has access actually needs access will become increasingly important.

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