The term trade secrets refers to business information or valuable know-how which a company does not want to fall into the public domain, for example, the recipe for Coca-Cola, the Google algorithm, or a unique marketing concept.
A trade secret is protected provided the information is confidential, has commercial value, and reasonable measures have been taken to keep it secret.
More information about trade secrets and i-DEPOT
What does it entail?
The owner of a trade secret can take action against anyone who obtains, uses, or makes it public, unlawfully, i.e. without permission. A trade secret is unlawfully obtained if, for example, someone copies confidential files or documents without consent.
The owner of a trade secret can also take action against goods that infringe this right, e.g. goods that are produced using the trade secret without the owner's permission.
The owner of a trade secret can take measures against it being unlawfully used, e.g. by applying for a seizure order or claiming damages against the party concerned.
How long is it valid?
There is no time limit on the validity of a trade secret. It is a trade secret as long as it remains confidential.
Why have trade secrets?
- To prevent a competitor from using or misusing sensitive company information or know-how.
- To be in a position to take effective measures against unlawful use of trade secrets, e.g. to have goods seized or recalled and destroyed, or to claim damages.
Is the information secret?
In order to protect a trade secret, one of the conditions to be met is that the information is not already general knowledge. Neither must the information be easily accessible to people who normally deal with that company information. Everyone who is aware of the trade secret must also know that the information must be kept confidential.
Does the information have commercial value?
The information has commercial value, precisely because it is confidential, e.g. company information about innovations. An invention, for instance, is, generally speaking, know-how that the inventor wants to keep secret until they have filed a patent application. Protection of know-how as a trade secret does not afford the same benefits as protection by a registered patent, but neither does it have the drawbacks of the patent system, e.g. complex procedures and expense. As long as the know-how is kept secret, in principle, the owner enjoys a global monopoly without incurring high costs. This is a separate matter from the measures that need to be taken to maintain confidentiality. It may also be advisable to record what know-how has been developed at what date, e.g. by means of an i-DEPOT or notarised deed.
Have reasonable measures been taken to keep the information secret?
If you want to protect a trade secret, first consider how others could obtain it. Then you should take specific security measures to address the vulnerabilities that you have identified and so keep the information secret. Consider, for example:
- Physical security
Keep your trade secret in a safe or locked archive. Only give access to the most essential information. Differentiate access as required per person. Make sure that all correspondence is marked 'confidential'. Doing so will strengthen your evidence;
- Digital security
Secure your system with passwords or save your trade secret in a digital safe, such as an i-DEPOT;
- Contractual arrangements
Specify exactly what information is secret. Make sure that the relevant parties are aware of their obligations regarding the trade secret. Make it clear what the consequences will be if the arrangements in place are violated. You can do so by setting them out in a Non-Disclosure Agreement (NDA), signed by both parties.
How does information become a trade secret?
A trade secret comes into being automatically, provided that it satisfies the relevant conditions. You do not need to register it. It can, however, be worthwhile storing your trade secret in a digital safe, such as an i-DEPOT, as this will enable you to substantiate later that you took measures to keep the information secret.
Trade secrets in the Benelux
More information about trade secrets in Belgium is available on the FPS Economy, Intellectual Property Department website.
More information about trade secrets in the Netherlands is available on the RVO website.
More information about trade secrets in Luxembourg is available on the Gouvernement du Grand-Duché de Luxembourg website.
Would you like some advice?
BOIP is an independent body. This means we cannot provide any personal advice. An external IP professional can however advise you about the best way to protect a trade secret.