Trade secrets, and the know-how that is covered by them, are an essential asset for all businesses.
The new Act provides for a better protection of this important asset and is therefore highly welcome.
On 24 August 2018 the new Belgian Act on the protection of trade secrets entered into force. The act was signed in the middle of this summer’s heatwave on 30 July 2018 and implements European Directive 2016/943 on the protection of undisclosed know-how and business information against their unlawful acquisition, use and disclosure. In this newsletter, we discuss the essence of this new Act concerning the protection of trade secrets.
The new Act defines a ‘trade secret’ as information which fulfils all of the following requirements:
- 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.
Under the new Act, the judge may, at the request of the trade secret holder, order any of the following measures against the alleged infringer of a trade secret:
- the cessation or the prohibition of the acquisition, use or disclosure of the trade secret;
- the prohibition of the production, offering, placing on the market or use of infringing goods, or the importation, export or storage of infringing goods for those purposes;
- the recall of the infringing goods from the market;
- depriving the infringing goods of their infringing quality;
- destruction of the infringing goods or, where appropriate, their withdrawal from the market, provided that the withdrawal does not undermine the protection of the trade secret in question;
- destruction of all or part of any document, object, material, substance or electronic file containing or embodying the trade secret, or, where appropriate, the delivery up to the applicant of all or part of those documents, objects, materials, substances or electronic files.
Those measures shall be without prejudice to any damages that may be due to the trade secret holder by reason of the unlawful acquisition, use or disclosure of the trade secret.
At the request of the person liable to be subject to the measures, the new Act provides that the competent judicial authority may order pecuniary compensation to be paid to the injured party instead of applying those measures if all the following conditions are met:
- the person concerned at the time of use or disclosure neither knew nor ought, under the circumstances, to have known that the trade secret was obtained from another person who was using or disclosing the trade secret unlawfully;
- execution of the measures in question would cause that person disproportionate harm; and
- pecuniary compensation to the injured party appears reasonably satisfactory.
There are several exceptions. The provisions concerning trade secrets should not affect the exercise of fundamental rights, in particular the right of freedom of opinion and information. Nor should it affect the application of rules that require the disclosure of information, including trade secrets, to the public or public authorities. The provisions concerning trade secrets should also not be understood as restricting the mobility of workers.
Trade secrets, and the know-how that is covered by them, are an essential asset for all businesses. The new Act provides for a better protection of this important asset and is therefore highly welcome.