Trade Secrets Legal Practice In EU & World

Although the secrets of the production are recognised as an effective remedy for the economic interests of entrepreneurs and applied from the times of Roman law (to take at least medieval sailors generously inhabited their memories and maps of various sea monsters will protect a comfortable way to the islands with spices or other treasures), for all that still lack a common understanding and harmonised regulation.

With respect to trade secrets a variety of terms is used production/technical/commercial secrets, confidential/classified information, commercial/official secrets, know-how and some other (we will use these terms as synonyms, unless otherwise indicated). There is no consistent understanding of their legal role and content. Neither there is clarity about whether the secrets can be considered to be intellectual property. Therefore, at the level of individual countries the approaches are significantly different. Take for example a Russian law, which in recent years has expanded the regulation of objects considered as commercial (official) secrets, then switched to production of secrets (know-how) and trade secrets relegating to the level of a simple mode of use.

This burden is oftentimes delegated to special departments or contracting agencies, which overwhelmingly depends on the type of business. Research and innovation companies prefer to gather production and legal forces under one roof. Thus, e.g. Manchester University has created a separate branch, UMIP, to deal with intellectual property aspects and maintain commercialisation.

The lack of uniformity in international law

The Paris Convention, which laid the basis for regulation of industrial property, does not mention trade secrets. The first document, having international status and regulation of trade secrets, the researchers recognise the TRIPS Agreement (although it speaks of classified information (undisclosed information)).

The legislation on the protection of know-how (trade secrets) is not standardized at the level of the European Union. However, in the European Commission requested the international law firm Hogan Lovells International LLP to prepare a report that reflected the existing pattern of national legislation regulating such matters, and was a starting point for attempts at unification of European legislation in this area.

A report published in January 2012 showed a serious variety of approaches, primarily due to different understanding of the term ‘trade secret’: the majority of Member States did not refer it to the intellectual property. Some states, in spite of this fact, regulate trade secrets similar to traditional intellectual property properly. In Sweden, there is a separate law on the protection of trade secrets. In other countries (e.g. Germany) the rules on the know-how dispersed the legislation on unfair competition, labor and criminal liability.

In some cases (e.g. in the Netherlands) the rules on tort liability apply to violations in the sphere of trade secrets. In Malta, the legal protection of know-how provided only a contractual right, respectively, in the absence of contractual relations, it is not granted. In the UK and Ireland there is no legislation at all devoted to the secrets of the production, while the common law provides a very high level of their protection.