Europe: Implementation of the EU trade secrets directive

The new “Law on Trade Secrets” now implements the so-called “EU Trade Secrets Directive”. This adopts the European legal requirements for the protection of confidential know-how and secret business information.

Even in the past, authorised signatories, commercial agents, trade assistants, commercial agents and trade brokers had to treat not only so-called “trade secrets” but also the reputation of their clients as confidential. Recently, these persons have even been subject to special liability.

Moreover, the new legal provisions contain limitation periods and important procedural provisions for the protection of trade secrets in court proceedings.

Subject matter and important regulations
Infringing products may be goods or services. Goods and services infringe the law if their design, features, functions or manufacturing processes are based, to a considerable extent, on unlawfully acquired, used or disclosed trade secrets.

If a trade secret is infringed, its owner can file a court action. This right shall expire five years after the date of the infringement. However, the defendant and any third party may claim damages if the action was unfounded or fraudulent. This entails a certain risk for the plaintiff. The deadline for the opponent to assert damages is one year.

Particularities in court proceedings
The parties, any other person who can prove a legitimate interest and witnesses in the proceedings may request the court to designate as confidential certain information submitted in the proceedings.

In justified cases, the court may restrict access to documents or to court proceedings.

In addition, documentation can be prepared that does not display any trade secrets.

However, these restrictions do not apply to the parties to the court proceedings or to their lawyers. Participants in court proceedings (parties, lawyers, witnesses, experts, court officials, etc.) are obliged - with a few exceptions - to keep the secret they become aware of during the court proceedings even after the proceedings have ended.

If measures prescribed in a ruling are not complied with, fines of 500.00 lev per week will be imposed. However, such fines are capped at the value of the damages claimed or awarded.

Author: Cornelia Draganova