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Thursday, 14 February 2019 18:14

EU Directive on Trade Secrets implemented in Portugal

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The provisions of the new Industrial Property Code concerning trade secrets protection came into force on 1 January 2019 in accordance with Decree Law 110/2018 of 10 December. 

Though with almost 6 months delay, the new rules implement the EU Trade Secrets Directive – Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016. The Trade Secrets Directive, seeks to approximate the laws at Union level to ensure higher and consistent minimum standards of civil protection for the unlawful acquisition, use or disclosure of a trade secret.

The key features of the new rules are the following:

1. A trade secret is defined as information that must:

(a) be secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among, or readily accessible to, persons within the circles that normally deal with the kind of information in question,

(b) have commercial value because it is secret, and

(c) have been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.

The former law contained a slightly stricter definition in relation to the necessary steps to keep the information secret. In contrast, the new law clarifies that the acquisition and use of trade secrets is lawful in some exceptional cases (e.g. for exercising the right to freedom of expression and information; for revealing misconduct, wrongdoing or illegal activity).

2. The unlawful use of trade secret can amount to an administrative offence punishable with a fine. Furthermore, similarly to the civil measures available for enforcement of intellectual property rights, a wide range of civil remedies are available to the trade secret holder including preliminary injunctions. This covers also protection in relation to goods which significantly benefit from a trade secret which was acquired, disclosed or used unlawfully.

The new regime is clearly more far-reaching since the former law only protected trade secrets in the context of unfair competition actions.

3. The confidentiality of a trade secret may be preserved in the course of legal proceedings. 

The new rules provide that the court may restrict access to documents and hearings in which trade secrets may be disclosed to a limited number of people. The confidentiality obligation shall in principle remain in force after the legal proceedings have ended.

Last modified on Thursday, 14 February 2019 18:21

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