Directive 2016/943 brings more homogeneous and more effective legal tools to protect undisclosed information across the European Union so as to facilitate innovation.

Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure has as its purpose to promote cross-border relationships among businesses investing in research and development. When implemented, the directive will give undertakings effective tools to protect their technological secrets not only in Poland, but in all EU Member States.

While defining trade secrets in a very similar way to the Polish Unfair Competition (Combating) Act, the directive introduces a number of solutions that will affect the Polish trade secret protection framework.

Confidential information can be protected not only by businesses, but also by individuals not in business. Protection extends to information of commercial value, whether actual or potential.

A trade secret is infringed where it is unlawfully acquired, used or disclosed. Accordingly, infringement claims may be raised against anyone who has acquired undisclosed information contrary to honest commercial practice or has breached a contractual duty of confidentiality, in either case without the consent of the holder of such information. The directive provides more protection to trade secret owners.

The directive makes it clear that use of someone else’s confidential know-how may also involve the production, offering or importation of infringing goods.

However, there are several exceptions whereby an otherwise infringing acquisition, use or disclosure is not considered unlawful. This includes, for example, situations where the infringing conduct is, under the circumstances, in conformity with honest commercial practices, or where it involves exercising the right to freedom of expression or has the purpose of revealing misconduct, wrongdoing or illegal activity (whistleblowing).

Businesses may find it important to learn that the directive provides procedural measures to facilitate litigation of claims by trade secret holders. Above all, infringing goods can be attached for the duration of the suit and, following litigation, withdrawn from the market and destroyed (or delivered up to a charitable organisation). Upon a duly reasoned application, the know-how infringement suit may proceed in conditions of confidentiality with restricted access of third parties to records of the case.

The Member States must implement the directive by 9 June 2018. However, you are advised not to wait with securing your know-how so as to be better positioned to protect it in future.

 

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Check what we refer to:

  • Directive 2016/943 on the protection of undisclosed know-how and business information
    (trade secrets) /link/;
  • the Unfair Competition (Combating) Act of 16 April 1993 (Journal of Laws of 2003, item 153.1503)

About the author

Absolwentka prawa, entuzjastka prawa własności intelektualnej, które – jej zdaniem – nie pozwala na nudę i rutynę, ponieważ każdy problem wymaga kreatywnego i indywidualnego podejścia. Sprawy, z którymi spotyka się na co dzień, łączą w sobie aspekty na pozór odległych od siebie dziedzin prawa, techniki i nauki, a to z kolei pozwala na ciągły rozwój zawodowy. Agata lubi wyzwania – dlatego lubi IP. Szczególnie interesuje się problematyką ochrony tajemnicy przedsiębiorstwa oraz znakami towarowymi.