Located in the heart of Europe, Belgium is a true hub of logistics and innovation. It is for example home to one of Europe’s largest sea ports (with all the warehousing infrastructure that one would expect). Belgium also hosts several, globally leading biotech and life sciences clusters. It is no coincidence for example that pharma giant Pfizer has one of its largest production and packaging sites in Puurs, a small Belgian town, where it produces its Covid-19 vaccine. A few miles north, Jansen Pharmaceuticals has its HQ.

Such hubs are not just rich in talented human resources, but also in cutting edge and highly valuable know-how. A high concentration of know-how, combined with the increased mobility of employees, means a high(er) risk of misappropriation of this valuable information by unauthorized (third) parties. When a (foreign) company suspects its know-how has been misappropriated in Belgium, it will need evidence to substantiate this allegation in court. If the know-how is (also) covered by an intellectual property (IP) right, the holder of the know-how has access to a very efficient means of collecting evidence: the descriptive counterfeit seizure whereby discovery-like evidentiary measures will be granted ex parte. When the misappropriated know-how is only protected as a trade secret, no similar measures are provided for under EU law. The Belgian judges have therefore in the past not been very eager to grant trade secret holders access to ex parte evidence-gathering. With a recent judgment, however, the Brussels Court of Appeal has left the door behind which discovery-like measures are stored for holders of trade secrets open.


Continue Reading Gathering evidence of trade secret infringement in Belgium: towards discovery-like measures?

In our prior post, we discussed what constitutes unlawful use of trade secrets, who bears the burden of proof, and how evidence can be collected to prove trade secret misappropriation under Belgian law.

Today’s post, which is the fifth and last in our series where we spotlight international issues in trade secret law, looks at two final questions:

1) Protection of trade secrets during court proceedings: who is allowed inside the “confidentiality club”?

A “confidentiality club” may sound rather like a speakeasy, but it is not. For those readers who are not particularly familiar with this area, we will first explain the problem for which the “confidentiality club” attempts to provide a solution. A thorny issue during court proceedings to enforce trade secrets is that the holder of the trade secret sometimes has to reveal more than they would like in order to increase the chances of success. This is often the reason why claimants are deliberately vague about the exact contents of a trade secret, or about where exactly the trade secret value resides. This comes usually with the risk that the claim will be dismissed for failure to meet the burden of proof. It is, understandably, not an attractive option to draw up briefs providing detailed information about the trade secret when it is not clear how much secret information has actually been stolen or is in the possession of the defendant. This would simply provide the contested information on a silver platter to the defendant. A similar problem arises with the pleadings and decisions of the court. Because, as a general rule, court hearings are public in Belgium, interested competitors could be in the audience to listen to everything that is being disclosed about the litigated trade secrets. However, for judgments and decisions to be based on correct reasoning and, above all, for them to be intelligible to parties not involved in the proceedings, judgments will have to include minimum information about the trade secrets. When transposing the Trade Secrets Directive, the Belgian legislator tried to meet this sensible concern by setting out a general protection scheme in Article 871bis of the Belgian Judicial Code. Article 871bis of the Belgian Judicial Code can be applied not only in proceedings about trade secrets, but also in other proceedings where a trade secret is used as evidence and must be submitted for the assessment of the court. Among the measures listed in Article 871bis of the Belgian Judicial Code are the possibility to issue redacted versions of court decisions and, of course, to set up so-called “confidentiality clubs.” These refer to the limited groups of persons who are, in certain cases, given access to certain documents shared in the proceedings and/or at certain hearings (and the relevant reports) during which trade secrets will be discussed.


Continue Reading International Issues in Trade Secret Law Series: “Confidentiality Clubs” and Remedies for Trade Secret Misappropriation under the Belgian Trade Secrets Act