Trade Secret

Trade Secret

Tags: bedrijfsgeheim, bedrijfsgevoelige informatie, confidential information, know-how, sensitive company information, trade secrets, Trade Secrets Protection Act, vertrouwelijke informatie, Wet bescherming bedrijfsgeheimen.

A trade secret, according to the “Trade Secrets Protection Act”, is information that meets the following conditions:

  • a. it is secret in the sense that, in its entirety or in the correct composition and arrangement of its constituents, it is not widely known or easily accessible to those within the circles who usually deal with such information;
  • b. it has commercial value because it is secret, and
  • c. it is subject to reasonable measures, under the circumstances, to keep it secret by the person lawfully in possession of it.

With regard to these reasonable measures, the Memorandum in the Explanatory Memorandum may include the addition of a confidentiality clause or NDA in contracts, such as trade contracts, employment contracts and regulations. It may also expressly name or record trade secrets and qualify the guarding of the site or installation concerned as a “reasonable measure”. Encryption is of course of great importance in the digital environment. Under the Trade Secrets Protection Act, the holder of a trade secret can take action against the unlawful obtaining, use and disclosure of the secret information. The acquisition of trade secrets without the permission of the rightholder is unlawful if this acquisition takes place through unauthorized access or the unauthorized appropriation or copying of the secret know-how. The use or disclosure of trade secrets is also unlawful if a person has unlawfully obtained the trade secrets without the permission of the rightholder or, for example, infringes a confidentiality agreement or a contractual or other obligation to limit its use.

The law states the following concerning this:

Obtaining a Trade Secret is unlawful

Obtaining a trade secret without the permission of the trade secret holder is unlawful if it is obtained by:

  • a. unauthorized access to or unauthorized ownership or copying of documents, objects, substances, materials or electronic files that the proprietor of the trade secret lawfully possesses and which contain the trade secret or from which the trade secret can be derived;
  • b. other conduct that, under the circumstances, is considered to be contrary to fair trade practices.

Using a Trade Secret is Illegal

The use or disclosure of a trade secret is unlawful when it is used or disclosed without the holder’s permission by a natural or legal person who:

  • a. has obtained the trade secret unlawfully
  • b. breaches a nondisclosure agreement or any other obligation not to disclose the trade secret, or
  • c. violates a contractual or other obligation to limit the use of the trade secret.

Obtaining, using or disclosing a trade secret is also unlawful when a natural or legal person, at the time of obtaining, using, or disclosing, knew, or in the circumstances, should have known that the trade secret was obtained directly or indirectly of another natural or legal person who unlawfully used or disclosed it as referred to in the second paragraph. The production, offering or placing on the market of infringing goods, or the import, export or storage of infringing goods for those purposes, is also considered to be unauthorized use of a trade secret when the natural or legal person who carries out such activities erases or given the circumstances, should have known it was being used unlawfully.

What can you do against Trade Secret Infringement?

Trade secret holders now also have more resources to fight offences. The proprietor may request a prohibition on the use or disclosure of the confidential information. One may also bring a claim for the recall or destruction of products already manufactured. In addition, compensation can sometimes also be claimed. The law also provides procedural guarantees for the protection of secret knowledge.

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