How will your trade secrets be protected in the EU?

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What are the differences?•IP rights = collection of specific rights and enforced by laws often litigated in specialist IP courts•Trade secrets = information and knowledge which is commercially valuable the secrecy of which is therefore protected by laws governing confidentiality and contracts, often employment contracts

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EU – what is the current position

•No harmonised definition•Member states have different approaches, e.g. UK – defined as „beyond mere confidentiality“ in Faccenda Chicken Ltd v Fowler [1984] ICR 589•Closest definition is that of „know how“ in Art 1(i) of EC Regulation 772/2004

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How will trade secrets be protected going forward in the EU?

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EU institutions have taken steps towards:•Harmonisation of protection of trade secrets throughout all member states•Aligning the level of protection with international standards, notably Art 39 TRIPS and US

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Definition – key components:•Secret, because not generally known or accessible•Has commercial value because secret•Reasonable steps taken to keep it secret

Trade secrets directiveCurrently at legislative stage –Not clear when it will come into force, but full compromise on the text was reached on 15th December 2015

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What are the main areas of protection?•Distinction between lawful and unlawful acquisition•Some public interest protection – e.g. Revealing illegality or misconduct•Entitles trade secret holder to civil remedies which must be available in national courts•Provisional and precautionary measures available•Orders such as correction and destruction available•Damages calculated on basis of negative economic consequences and moral prejudice in the event of proven unlawful acquisition

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