Intellectual Property update: Spring 2015

Written on 29 May 2015

In this edition, we focus on trade secrets. Every business will possess them, and they can play a crucial part in protecting commercial advantage. We get an inside view on the role of trade secrets in protecting business advantage in two global companies, and how to keep those secrets secret.

But, as we highlight for four key European jurisdictions, it is apparent the legal protection for
trade secrets across Europe is inconsistent and well overdue an overhaul.

The proposed EU Trade Secrets Directive, expected to be passed this year, will go some way to harmonising and bolstering protection across Europe. However, our review shows that questions will remain and there will continue to be areas of inconsistency. And until the Directive has been transposed into national law, businesses will have to continue to grapple with the mix of statutory, common law and equitable principles that make up the patchwork of legal protection for trade secrets in Europe.

 

An insiders’ guide

We asked two insiders to share their perspectives on trade secrets from the sharp end and offer their insights into identifying, managing and protecting trade secrets in businesses where knowledge is key.

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The current state of play

What does the legal landscape look like right now across Europe? We take a look at four key jurisdictions:

Staying in control: Seven tips for managing trade secrets in transactions

Whichever European jurisdiction you are trading in, when you do need to disclose trade secrets, you should consider protecting them contractually with a non-disclosure agreement. With an English perspective, we highlight seven points that you should think about next time you need to disclose any confidential know-how.

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What’s next?

The European Commission has highlighted the lack of consistency in the protection of trade secrets across Europe as having a negative effect on cross-border trade. We agree. A draft Directive is working its way through the final stages of the EU legislature and is expected to be adopted this year. Member States will then have two years to transpose the Directive into national law.

So what are the key changes that are being brought in by the Directive and where will uncertainty or inconsistency remain?

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