Trade secrets are valuable business assets. It can be used by businesses alongside formal intellectual property rights (i.e. patents, designs, trade marks and copyright), or as an alternative to them, to provide a competitive advantage in the marketplace.
In the UK, trade secrets are protected by contract and/or the common law of confidence.
The Trade Secrets (Enforcement, etc.) Regulations 2018 came into force on 9th June 2018 and implement the EU’s Trade Secret Directive into UK law. These rules will benefit businesses by clarifying how to protect their trade secrets where they are misappropriated.
The aim of the legislation
The main objective of the Trade Secrets Directive is to achieve an equivalent level of protection throughout the EU by establishing a sufficient and comparable level of redress for trade secret holders in the event of the unlawful acquisition, use or disclosure of their trade secrets. The Directive seeks to improve the environment for innovation and knowledge transfer within the EU by enhancing the effectiveness of the legal protection available for trade secrets.
Definition of a trade secret
The Trade Secrets Regulations establishes a common definition of a trade secret across the EU.
A “trade secret” means information which -
(a) Is secret in the sense that it is not, generally known among, or readily accessible to, persons within the circles that normally deal with the kind of information in question,
(b) Has commercial value because it is secret, and
(c) Has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.
The Directive provides for civil law remedies, which includes injunctions, financial compensation, measures and where relevant, the publication of judicial decisions.
You can find the legislation here.
As always, if you have a legal query please get in touch with the FSB Legal Helpline on 0345 0727727 and we'll be happy to assist you.