The provisions of Directive (EC) 2016/943 on the protection of undisclosed know-how and commercial information (trade secret) will be implemented by the new Protection of the Trade Secrets Act (“PTSA”). The aim is to provide legal protection for intellectual products, commercial and scientific information and the innovative know-how.
Trade secret is any commercial information, know-how and technological information, which should meet simultaneously three conditions:
- to constitute a secret in such way that as a whole or in its exact combination and set of elements is not generally known or readily accessible to persons from the environments that typically use such information;
- to have a commercial value due to its secret character;
- measures have been taken in order to preserve it as a secret by the person who has a control over the information.
The PTSA distinguishes the cases where the acquisition of trade secret is legal, respectively – illegal and establishes a system of remedies against unauthorized acquisition, use and dissemination of such secrecy. Every possessor or person who is exercising control of trade secret has the possibility to submit a claim under the Civil Procedure Act. Further to establishing the claim, the claimant may request:
- Award of indemnity for the material and non-material damages suffered and the loss of profits;
- Suspension or prohibition of the use or disclosure of the trade secret;
- Ban on production, supplying, placing on the market and / or use of goods that violate trade secrets or the import, export or storage of such goods for these purposes;
- Prohibition of offering or provision of services which are greatly influenced by trade secrets, that have been unlawfully acquired, used and disclosed;
- Destruction of targets or part of documents, objects, materials, substances or electronic documents which contain or bear trade secret or where appropriate – their transmission to the claimant;
The right to submit a claim is extinguished by the expiration of 5 years as of commission of the violation. Rules are provided for limiting the accessibility of the case – at the request of “the parties and any other interested party, including witnesses”, the court may impose special measures listed in the PTSA in order to protect the confidentiality of the trade secret.
Specific rules are provided for the calculation of damages resulting from a breach of trade secret. Courts shall consider not only the direct damages and loss of profit, but also elements such as the profits made by the offender as well as the non-material damage caused to the possessor of the trade secret.