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Month: May 2017

Trade secrets

Trade secrets

3.3 As trade secrets are protected under contract law, the most common form of contract that is evoked in a breach of confidence dispute is that of employment. It is important to note that with the duty of confidentiality, an employee is also bound by the duties of good faith and fidelity to his employer, so as to safeguard that employer from competition.[1]


3.4 Under UK law, in any trade secret dispute the key issue to be established is that of the confidentiality of the information. The party alleged of the breach of confidentiality can argue that the information, or trade secret, that has been shared with others, was misappropriated, and the party responsible for the protection of that information had either failed to protect the secrecy of this information or had otherwise failed to appropriately convey the importance and weight that that information carries, thereby evoking the confidential nature of that information.[2]


3.5 The United Kingdom has a well-developed common law system in place for settling trade secret disputes, however only civil penalties exist in this area, and criminal law is yet to be introduced in this area.

  • Common law shortcomings


4.1 The system that has been established in the United Kingdom is nuanced due to the amount of case law that has been settled, accessing various aspects of trade secret disclosure, and therefore there is little to be added to the rigid system. However, the need for reform exists due to the uncertainty that exists when dealing with cross-border business disputes. To elaborate, the internal market is in need of a harmonised minimum protection of trade secrets. Trade secrets are vital for the survival of small and medium sized businesses. To promote intra-Union trade the 2016 Directive aspires to promote a level of protection to business owners trade secrets and to encourage cross-border trade, as this will ultimately endorse growth amongst businesses and the economy overall within the Union.


4.2 Alternatively, it can be deduced that due to the lack of protection afforded to businesses operating in foreign territories, it can be said that this notion is discouraging to business operators, and due to the uncertainty and lack of protection that could be afforded to these business owners, economic growth is stunted.[1] When considering legitimate economic interest, it is crucial to denote the significance of the protection of trade secrets, as this in essence is something to be afforded a minimum level of protection in order to preserve shareholder interests and to encourage business growth, as noted by the Committee on Industry, Research and Energy of the European Parliament.[2] The diversity of approach to the protection of trade secrets that exists in all Member States today can be said to be the cause of mistrust amongst business owners, and it is clear that the harmonisation of a minimum level of protection afforded to trade secrets will provide to be a welcome addition to the EU legal framework with a very limited impact on the already well-established UK common law system in this area.


[1] Jean Lapousterle, Christophe Geiger, Norbert Olszak, Luc Desaunettes “Legislative Comment; What protection for trade secrets in the European Union? A comment on the Directive proposal” E.I.P.R. [2016] 38(5), 255-261

[2] Opinion of the Committee on Industry, Research and Energy of the European Parliament, 2013/0402(COD), (29 April 2015), p.23.

[1] Jon Lang “The protection of commercial trade secrets” E.I.P.R. [2003] p.14

[2] ibid. p.15

[3] abogados de accidentes de auto