Protecting trade secrets

Does your business have trade secrets? You may if you develop innovative products or services and want to prevent others from copying your products or processes. It is important that your business information remains secret. The Trade Secret Protection Act (Wet bescherming bedrijfsgeheimen) will help you.

What is a trade secret?

A trade secret is any business information that is valuable because it is unknown to other parties. It can relate to any part of your business, for example:

• processes
• formulas and recipes
• research data
• technological knowledge
• client data

If you need this information to be kept from third parties, it is a trade secret.

What does the Act do?

The Trade Secrets Protection Act protects trade secrets against breaches such as:

• theft
• copying without authorisation
• economic espionage
• breaching a non-disclosure agreement
• publication

If any of these happen, it comprises a breach of your trade secrets and you can go to court.

Who benefits from the Act?

You do not have to register your product or process in order to be protected by the Act. This is especially important for smaller companies that may not have the time, knowledge or money to apply for a patent. Or if the trade secret cannot be protected by a patent.

Conditions

You are only protected by the Act if your trade secret meets the following conditions:

• Your trade secret should really be a secret. It does not consist of information that is broadly known or easy to find, or otherwise publicly accessible.
• Your trade secret should have value. The information is valuable because of its secrecy. For example, the production process of a certain kind of paint or recipes for food or drinks.
• You must have taken precautions to keep the information secret. For example, you can store your information in a digital safe, such as the i-DEPOT from the Benelux Office for Intellectual Property (BOIP).

Protecting from breaches

To protect your trade secrets from breaches, you can take a number of measures (in Dutch):

• you can employ physical security, such as guards or security cameras to protect your business, safe, or closed archives
• you can limit electronic access by improving digital security, for instance by using passwords and end-to-end encryption
• you can put trade secrets in a digital vault, such as the i-DEPOT
• you can make explicit arrangements with employees through non-compete clauses, confidentiality declarations in contracts and labour protocols
• you can make explicit arrangements with business partners through confidentiality or non-disclosure agreements
• you can train employees and vendors in handling your confidential information

What to do in case of a breach?

If someone breaches your trade secret, you can go to court and ask the judge to:

• ban them from making any products using your trade secret
• ban them from making your secret public
• confiscate any products made using your trade secret
• recall any of these products from shops and have them destroyed
• impose damages
• make the judicial ruling public