Voor veel ondernemers zijn know how, specifieke kennis en bedrijfsgeheimen van essentieel belang.
Voor veel ondernemers zijn know how, specifieke kennis en bedrijfsgeheimen van essentieel belang.
Voor veel ondernemers zijn know how, specifieke kennis en bedrijfsgeheimen van essentieel belang. However, protecting this valuable information is not always easy. While patent law offers protection, it requires publication of the invention, which is not always desirable. Moreover, not all trade secrets are suitable for protection as intellectual property. This is where the Trade Secrets Protection Act (‘Wbb’) offers a solution, especially procedurally.
The Trade Secrets Protection Act defines trade secrets as information that (1) is secret and not generally known or easily accessible, (2) has commercial value because of its confidentiality, and (3) is protected by reasonable measures to ensure its secrecy. This can be technical information or commercial information, provided it provides financial benefits or a competitive advantage. Consider confidentiality clauses in contracts, encrypted data storage, and other measures to ensure confidentiality. The law states that any obtaining, use or disclosure of trade secrets without consent is unlawful. This includes not only the intentional copying of documents, but also unauthorised access or appropriation of materials containing the trade secrets.
An NDA (Non-Disclosure Agreement) is one of the most effective measures to protect trade secrets. Through an NDA, you commit the recipient of confidential information to keep it strictly confidential and not to use or share it without permission. Drafting a thorough NDA not only helps clarify what is considered confidential information, but also strengthens your legal position should a dispute arise. A well-worded NDA can make all the difference when proving wrongful conduct and obtaining damages.
If your trade secrets have been obtained illegally, you can take legal action. The court can prohibit the use or sale of products made using the trade secrets. You can also seek damages from the infringer. The damages are usually based on the amount that would have been due if the infringer had requested permission to use the trade secret. Section 8 of the Trade Secrets Protection Act also allows for additional damages if the infringer knew or should have known that he was acting unlawfully.
One of the biggest challenges in enforcing rights to trade secrets is that you have to reveal your secrets in legal proceedings to prove infringement. The Trade Secrets Protection Act provides protection here through section 1019ib of the Code of Judicial Procedure. This article states that the court can determine that trade secrets remain confidential and can only be accessed by specific parties, such as lawyers and some others involved. The court can determine that the litigant himself will not be granted access to certain documents if this would seriously harm the protection of trade secrets, as regulated in Article 22a Rv. These provisions help ensure the confidentiality of trade secrets, but also raise questions. It can be difficult for a lawyer not to share information with his client, and it raises doubts about the right to a fair trial. The Trade Secrets Protection Act provides clear frameworks for what constitutes a trade secret and when an infringement occurs. However, it remains essential to properly protect trade secrets preventively, for instance with non-disclosure agreements (NDAs) and technical security measures. This will prevent competitors from getting hold of your valuable knowledge.
If you have a question about protecting your trade secrets and know how, please contact Guldemond Advocaten.
