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Published 6 December 2018
Confidential information has long been protected in the UK under contract and the common law of confidence, with no restriction on the type of information protected.
Now an additional level of protection is available for trade secrets, although the existing law protecting confidential information will continue.
What are trade secrets?
Trade secrets can be a process, practice or other form of confidential information that has commercial value to a company. Ideas before they are expressed in a form that is protectable by copyright, experiments or designs that may result in a patent, or designs for a new logo that may become a registered trade mark, for example, may all fall within the remit of trade secrets.
The Trade Secrets Directive
The Trade Secrets Directive (the “Directive”) harmonises the trade secrets regime across Europe and introduces a minimum standard of protection.
Introducing a definition of “trade secrets” – a higher standard?
The Directive defines a trade secret as information that:
If the trade secret holder maintains these steps, protection can last indefinitely.
Reasonable steps to ensure continued protection
“Reasonable steps" are not currently defined in the Directive and it is likely that each country within the EU will develop its own guidance around this in due course. The following will help demonstrate reasonable steps:
Finally, now that trade secrets are covered by the Directive as another type of intellectual property right, holders of trade secrets will be able to access slightly greater protection from the courts. This includes the possibility of enhanced damages for moral prejudice, which could be more generous than the compensation damages previously available.
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