Trade Secrets Protection Act

Trade Secrets Protection Act

The Trade Secrets Protection Act provides the holder of a trade secret with a number of legal remedies to prevent unauthorized use of trade secrets.

At the court, the trade secret holder can:

  • claim a ban on the use of trade secrets;
  • claim a ban on the production of goods produced through trade secrets;
  • request allowing (evidence) to seize the allegedly infringing goods;
  • bring an action for recall from the market of the allegedly infringing goods;
  • seek the destruction of the allegedly infringing property;
  • claim destruction of the documents that contain trade secrets; and
  • claim damages (under certain conditions).

With the advent of the Trade Secrets Protection Act, the confidentiality of trade secrets will also be preserved during legal proceedings. After all, the legislator comes with a completely new title in the Code of Civil Procedure for lawsuits about the protection of trade secrets.

The law indicates that parties will be prohibited from using or disclosing trade secrets that have been declared confidential by the courts and have been brought to their knowledge by trial:

Article 1019ib
1. It is up to parties, their lawyers or other representatives, witnesses, experts and other persons who participate in legal proceedings concerning the unlawful obtaining, use or disclosure of a trade secret, or who have access to the documents forming part of these legal proceedings, to use or disclose any trade secrets or alleged trade secrets that the court has declared confidential at the request of a party and that have become known to them as a result of such participation or access.

This ban will continue to apply after the lawsuit. Only when it has been established that it is not a protected trade secret, or when the information becomes public knowledge or has become easily accessible, the prohibition no longer applies:

2. The prohibition referred to in the first paragraph remains in effect after the judicial proceedings have ended. The obligation ceases to exist if:

a. in the event of a final judgment between the parties, it has been established that the alleged trade secret does not meet the conditions set out in Article 1 of the Trade Secrets Protection Act, or

b. over time, the information in question becomes generally known to, or becomes easily accessible to, those within the circles who usually deal with it.

In addition, the ban can be lifted in whole or in part by the judge.

During the procedure, the confidentiality of a trade secret can be kept. The judge can, for example, take the following measures:

  • a. restrict or limit access to documents submitted by parties or third parties that contain the trade secret or the alleged trade secret to a limited number of persons;
  • b. to limit access to sessions where the trade secret or alleged trade secret may be disclosed, and to limit access to the minutes of these hearings or to restrict all or part of their image or sound recording and written presentation to a limited number of persons;
  • c. make a non-confidential version of the court rulings available to others than those who belong to the limited number of persons referred to under a and b, in which the parts containing the trade secret have been deleted or edited.

The measure taken by the judge will depend on the proportionality of the measure, the legitimate interests of the parties and third parties, and the possible damage to one of the parties and third parties as a result of the granting or rejecting of the measure. However, the number of persons who take note of the information or the hearing is always at least one natural person from each party, as well as the lawyers or other representatives of the parties to the proceedings.

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