We are looking back on our series where we spotlight international issues in trade secret law under the Belgian Trade Secrets Act.

To claim that major conclusions can be drawn from the dozen decisions handed down since the Trade Secrets Act came into force would not be serious. Nevertheless, listing and comparing these rulings has led to some striking observations.

The number of judgments that we found is limited. There are a number of possible explanations for this. A first explanation could be that some parties whose information has been misappropriated since the Trade Secrets Act have not (yet) determined this. This explanation seems to be confirmed by the fact that in several of the cases we have discussed, a period of three to four years elapsed between the facts giving rise to the claim and the first step taken by the claimant against the alleged infringer.[vii] The limited number of judgments may also be partially explained by the fact that even parties who have established infringement may have subsequently realized how many hurdles there are to bringing a successful claim under the Trade Secrets Act. Finally, it seems that there may well be a significant number of potential claimants who, though being aware of infringement and willing to overcome the hurdles, possess insufficient evidence to demonstrate that the infringer misappropriated their secret information. Although the possibility of a unilateral application through summary proceedings was discussed, a statutory scheme like that for intellectual property rights (the counterfeit search and seizure procedure) would probably allow for smoother gathering of evidence.

Finally, there remains the question of the concentration of disputes in the Dutch-speaking courts of Brussels, Antwerp and Ghent. In itself, a concentration can only be welcomed. It should lead to an accelerated specialization of the judges, which was clearly one of the purposes of the Trade Secrets Act. Something that could not have been the purpose of the legislator, and certainly not at the European level, was to set up a system that deters enforcement in the case of misappropriation of secret business information. This is, however, the practical result of certain judgments discussed in this series. This strictness on the part of certain judges may have been prompted by the fear that alleged trade secrets would be invoked over and over again in order to unlawfully restrict free competition and the free movement of workers and service providers. On the basis of the decisions discussed, this fear appears to be unjustified although, again, it is too early to make bold statements.

After all, where there is a will, there is a way: and this applies both to those seeking to misappropriate trade secrets and those seeking an avenue to act against them.

[vii] In the Solvay case (Orb. Brussels (Nl) March 12, 2020, ICIP 2020/2, 565.) the first suspicions arose in 2017 and Solvay only summoned its ex-employee on March 29, 2019. In the Entaco case (Ghent 24 June 2020, AR A/19/03789, NV Entaco t. Comm. V O.F.P.-Chemicals, unpublished ), the first incidents took place in the period between 2015 and 2016, upon which the summons of Entaco followed on December 13, 2019. In the Stephex case (Vz. Arb. Brussels 22 October 2018, unpublished and Brussels 27 August 2020, 2019/KR/25, Krismar NV, Steels Constructions BVBA v. Stephex Holding Comm. V.A., unpublished) the employee left Stephex in 2014 and the latter had a counterfeit attachment executed in 2017.