Act on the Protection of Trade Secrets

2.3 It is of vital importance to note how important it is to safeguard trade secrets with an emphasis on the approach that is taken to that protection. As mentioned before, various Member States have a drastically varying approach to the level of protection that trade secrets are afforded, for example Sweden has clearly set out legislation on the protection of trade secrets,[1] whereas Italy has provisions in relation to trade secret protection set out in the Industrial Property Code.[2] The 2016 Directive seeks out to ensure that across the Union a basic level of protection is provided for all, with the ultimate aim of promoting cross-border trade and overall promotion of the internal market.[3]

  • Breach of confidence

3.1 As mentioned above, there is no statute safeguarding the protection of trade secrets in the United Kingdom, however there is an outstanding number of cases that have dealt with the issues of protecting trade secrets.[1] The well-established common law in this area functions as a rigid regime for a level of protection afforded to trade secrets. As mentioned above, a definition exists for trade secrets, which includes a level of confidentiality, as derived from Coco [1969].[2]

3.2 Trade secret protection, more often than not, is intertwined with contract law, as there may exist a contractual relationship between the parties where there is a person to whom a duty of confidence is owed and a person who has breached that duty.[3] In this instance a claim may be brought against the party allegedly in breach of that duty of confidence, and where no contractual relationship exists between the parties, a claim may be brought against a third infringing party, who has used the information unlawfully.[4]

[1] For example – Coco v A.N. Clark (Engineers) Ltd [1969] F.S.R. 415; Vestergaard Frandsen S/A (now called MVF3 APS) v Bestnet Europe Ltd [2013] UKSC 31; Smith & Nephew Plc. v ConvaTec Technologies Inc. [2015] EWCA Civ 607.

[2] James Morando “Confidential – For your eyes-only” [2011] Managing Intellectual Property, San Francisco, Euromoney Institutional Investor PLC Oct 2011

[3] Jon Lang “The protection of commercial trade secrets” E.I.P.R. [2003] p.14

[4] “CODIFYING TRADE SECRETS – PROTECTION WILL DETER WRONGDOERS” [March 2014] Solicitors Journal < http://www.penningtons.co.uk/news-publications/latest-news/codifying-trade-secrets-protection-will-deter-wrongdoers/> Accessed:25 March 2017

[1] Act on the Protection of Trade Secrets (1990:409) of May 31, 1990

[2] Industrial Property Code (Legislative Decree No. 30 of February 10, 2005, as amended up to Decree-Law No. 1 of January 24, 2012, converted into law with changes by Law No. 27 of March 24, 2012) Article 98 and 99, abogados de accidentes

[3] Baker & McKenzie “Study on Trade Secrets and Confidential Business Information in the Internal Market” [April 2013] <http://ec.europa.eu/internal_market/iprenforcement/docs/trade-secrets/130711_appendix-18_en.pdf> Accessed: 25 March 2017