A recent English court decision for the first time explores the overlap between trade secret claims under the EU Trade Secrets Directive 2016/943 and English equitable and common law claims for breach of confidence.

In Trailfinders Limited v Travel Counsellors Limited & Ors [2020] EWHC 591 (IPEC), travel agency Trailfinders brought a case against competitor TCL and four former employees who allegedly exploited customer lists and accessed Trailfinders’ customer database after joining TCL to exploit confidential information to their and TCL’s benefit.

In analyzing whether information taken by employees rose to the level of trade secrets, the judge turned to “the definition of ‘trade secret’ in art.2(1) of Directive 2016/943 (always bearing in mind the broad interpretation of ‘trade secret’ in the Directive).” Trailfinders Limited v Travel Counsellors Limited & Ors [2020] EWHC 591 (IPEC), [29]. Trade secrets under the EU Trade Secrets Directive, implemented in the United Kingdom by Trade Secrets (Enforcement etc.) Regulation 2018, must meet all of the following requirements: “(a) it is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question; (b) it has commercial value because it is secret; (c) it has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.” The judge recognized that there were different categories of information that employees could be exposed to during employment which were entitled to varying levels of protections.
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Crowell & Moring invites you to attend the second installment of our Trade Secrets Webinar Series: Trade Secrets are Not Intellectual Property – At Least Not in the European Union, taking place on Tuesday, February 11th at 11:00 am (EDT).

How are trade secrets defined in the EU versus in the US?

How do the US and EU judicial bodies differ in their view of trade secrets, and how does that protect, or leave vulnerable, your company’s most valuable information?

How might cross-border (or transnational) companies protect their intellectual property assets and prepare for threats when subject to dual (EU & US) enforcement?

During this webinar, Crowell & Moring attorneys Jan-Diederik Lindemans and Judith Bussé will guide you through the small differences in the language and theory behind the EU Trade Secrets Directive and the US Defend Trade Secrets Act (DTSA), and the important consequences these have on your trade secrets protection and strategy.

To register, please click here.
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On December 5th, 2019, Crowell & Moring’s Brussels office, in cooperation with the Belgian Institute for In-House Counsel, hosted a deep dive session into the EU Trade Secrets Directive and the changes this legal framework has brought about since it went into effect in 2016.

Crowell & Moring attorneys including Partners Jan-Diederik Lindemans and Emmanuel Plasschaert, Senior Counsel Gunther Meyer, and Associates Judith Bussé and Evelien Jamaels guided participants through best practices on maximizing protection of commercially valuable information under the legal framework, explained how it impacts companies’ relationships with employees and contractors, and finally discussed how the framework will co-exist with upcoming EU rules on whistleblowing. Participants especially appreciated the insights shared by Belgian State Security Counter-Intelligence Coordinator, L. Van Der Haeghen, about commonly used techniques to steal or otherwise unlawfully obtain trade secrets during the discussion.

Below are a few key points participants took away from the discussion:
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Crowell & Moring invites you to attend the third installment of our “Safeguarding Your Secrets in the Digital Age” webinar series: How to Work with Third-Parties, Including Those Internationally, taking place on Tuesday, November 12th at 12:00 pm (EDT).

During this webinar, Crowell & Moring Counsel Raija Horstman and Associate Judith Bussé will

After posts considering confidentiality protections under the EU Trade Secrets Directive 2016/943 when litigating in various jurisdictions, we next turn to how these issues arise in the context of arbitration.

Where trade secrets are protected by a contract, an opportunity arises for parties to consider alternative dispute resolution mechanisms including arbitration and whether to adopt express rules in arbitration that protect confidentiality.
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In our next post on the EU Trade Secrets Directive 2016/943, we turn to the Netherlands. In the Netherlands, the EU Trade Secrets Directive was implemented in 2018 by the Act on the Protection of Trade Secrets (Wet bescherming bedrijfsgeheimen) and led to amendments to Dutch procedural law including those related to confidentiality clubs. For example, access to alleged trade secrets introduced in proceedings is granted to at least one person of the opposing party and that party’s lawyer under confidentiality restrictions. (Article 1019ib, Dutch Code of Civil Procedure). Depending on the nature of the trade secret, however, the court may order that access to certain documents be limited to only a lawyer or another authorized representative but not a representative of the opposing party. (Article 22a(3), Dutch Code of Civil Procedure).
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The EU Trade Secrets Directive 2016/943 contains a variety of confidentiality protections expressly protecting the publicity of the proceedings because “[t]he prospect of losing the confidentiality of a trade secret in the course of legal proceedings often deters legitimate trade secret holders from instituting legal proceedings to defend their trade secrets, thus jeopardising the effectiveness of the measures, procedures and remedies provided for.  For this reason, it is necessary to establish, subject to appropriate safeguards ensuring the right to an effective remedy and to a fair trial, specific requirements aimed at protecting the confidentiality of the litigated trade secret in the course of legal proceedings instituted for its defence.”  Article 9 of the Directive specifically required EU member states to implement rules creating such protections, such as by restricting access to hearings and creating so-called “confidentiality rings” or “confidentiality clubs” limiting the dissemination of confidential information and documents to designated persons.

The United Kingdom’s implementing law, the Trade Secrets (Enforcement, etc.) Regulations 2018, requires that the court have the power to restrict access to documents containing alleged trade secrets and to hearings. s. 10(5).  There is already significant maturity in the kinds of confidentiality protections available in English litigation so this is unlikely to lead to significant change.  Although the principle of open justice is a fundamental feature of the legal system and departures are permitted only if necessary in the interests of justice, exceptions and restrictions to openness and respect for confidentiality are actually already well-established in the United Kingdom. See McKillen v Misland (Cyprus) Investments Ltd and others [2012] EWHC 1158 (Ch).
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On June 28, 2019, the Luxembourgish Mémorial published the Law of June 26, 2019 on the protection of undisclosed know-how and business information better known as trade secrets implementing the EU Trade Secrets Directive 2016/943 after a one year delay. The recent Luxembourgish Law is a literal transposition of the EU Directive and provides a legal definition of “trade secrets,” which was up until now only defined by the courts. The EU Directive defined “trade secret” as information that (i) is secret, i.e. not publicly known or readily accessible to persons normally dealing with this kind of information, (ii) has commercial value because it is and remains a secret, and (iii) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret. This definition thus includes any kind of sensitive business information that is kept secret by reasonable measures, such as market studies, business plans, pricing information, etc.
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On April 1st, 2019, the Greek Law 4605/2019 implementing the Trade Secrets Directive 2016/943 was published in the Official Gazette. This new law creates a framework for the protection of business information and know-how. Before that date, Greek law did not provide for any legal protection against the expropriation or theft of for example software

On April 16, 2019, the EU Parliament approved a draft directive for new harmonized rules on the protection of whistleblowers. The Directive of the European Parliament and of the Council on the Protection of Persons reporting on Breaches of Union Law (the “Whistleblowing Directive”) creates EU-wide minimum standards to protect persons disclosing information to which