Although the Trade Secrets Protection Act came into effect two years ago, in practice it appears that not every company is well aware of the benefits that this law can offer. It is also not known what measures it must take in advance to be able to make use of the protection of this Act.
The intellectual capital of a company is often formed by company data. Company information is undisclosed know-how and company information. In the law these are called trade secrets. However, trade secrets cannot always be qualified as intellectual property, so that they lack the protection of the associated legal regulations. The WBB offers a solution for those trade secrets.
The information that can be classified as a trade secret under the WBB is very varied. This may include technological knowledge such as manufacturing methods and recipes, trade data such as customer and supplier information, business plans or market research and strategies.
Information is a trade secret within the meaning of the WBB if three cumulative conditions are met:
- The information must be secret;
- The information has commercial value because it is classified;
- The holder has subjected the trade secret to reasonable measures to keep it secret.
Measures to be taken
Although the European directive, of which the WBB is the implementation, does not provide any indications as to which measures can be regarded as reasonable measures, the Dutch legislator has given a number of examples of this. The legislator talks about technical and contractual measures, such as confidentiality clauses and provisions, the explicit naming or registration of trade secrets and taking digital protection measures, including encryption.
The WBB offers the holders of the trade secrets the opportunity to challenge the unlawful acquisition, disclosure or use of their trade secrets.
Using or disclosing a trade secret is unlawful when the trade secret is used or disclosed without authorization by any person who:
- Obtained the trade secret unlawfully
- Breach of a nondisclosure agreement or other obligation not to disclose the trade secret
- Violates any contractual or other obligation to restrict the use of the trade secret.
In the event of an infringement of the trade secret, the holder can request a court – whether or not in summary proceedings – to stop or prohibit the use or disclosure of the trade secret. The trade secret holder can also request the summary proceedings judge for leave to seize the alleged infringing goods. When deciding on such a claim, the court will take into account the specific circumstances of the case, including the measures taken to protect the trade secret.
In order to ensure that the legal remedies offered by the WBB can be invoked, it is therefore important that the company knows what trade secrets it has, has described and recorded them and that it takes contractual and technical measures.
First Lawyers can support and advise you on the measures to be taken so that you can rely on the protection of the WBB in appropriate cases. If your trade secrets are infringed, we will assist you in securing your trade secrets through the courts if necessary. Please feel free to contact one of our lawyersor call +31 (0) 70 306 00 33 or firstname.lastname@example.org.