Trade secrets are not protected by a specific intellectual property right. Therefore trade secrets do not confer “proprietary rights”, meaning that the holder of a trade secret does not have exclusive rights over the information. Thus, to protect trade secrets, organisations are advised to take measures and implement a range of best practices to make sure that the trade secret is kept confidential.
These measures and best practices include:
- assessing the company’s valuable confidential information;
- developing an internal trade secret policy;
- storing confidential information safely;
- creating employee awareness of the importance of keeping trade secrets safe;
- concluding non-disclosure agreements in the case where trade secrets must be discussed with business partners;
- including non-disclosure clauses within agreements such as licence agreements, consortium agreements or partnership agreements, where the exchange of confidential information is very likely and/or necessary.
These measures are highly important since once the information is leaked, others can use it freely since no proprietary right to the trade secret exists.
However, if the information was leaked by someone under the obligation to keep confidentiality, such a disclosure would constitute a breach of contract allowing remedies for the trade secret holder. Moreover, if a person obtains the trade secret by dishonest means (such as in the case of espionage), all countries in the European Union offer some form protection under unfair competition law.