The protection of business secrets


Aurélia Marie

The European Commission’s Innovation Union proposals, launched in 2010, aimed to give companies and non-commercial research entities the legal means to protect the special knowledge they develop.

Not susceptible to ownership through IP rights, this “confidential business information” or “undisclosed information” (know-how, business plans, customer lists, suppliers, market strategies, etc), otherwise referred to as trade secrets, nevertheless provides competitive advantages, and is often the target of espionage and theft.

Different studies conducted at European level have shown that in the different countries of the EU legal means have been put into place to try to protect these trade secrets against their use by a third party that obtains them by illegitimate means. However, disparities between member states make this protection less effective. So, the European Commission has presented a proposal for a Directive for the protection of know-how and undisclosed trade information (trade secrets) against their procurement, use and illegal disclosure (COM 813 final 2013). 

A trade secret is defined via three cumulative criteria. The information must be secret (unknown and not accessible to people in circles interested in the relevant information), it must have commercial value because it is secret, and it must have been kept secret by the exercise of reasonable care by one who has control over the information, named the “holder”.

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