Protecting trade secrets

Does your business have trade secrets, for example because you develop innovative products or services? If someone uses your trade secret without permission, for example, to copy your products or processes, you can go to court. The Trade Secret Protection Act (Wet bescherming bedrijfsgeheimen, in Dutch) can help you with this.

What is a trade secret?

A trade secret is confidential information that belongs to your business. It can relate to any part of your business, for example:

• processes
• formulas and recipes
• research data
• technological knowledge
• client data
• concepts
• software
• strategies
• contracts

If you need this information to be kept from third parties, it is a trade secret. You should make sure your trade secret remains secret. For example, with non-disclosure agreements, and good security in your company. You can also store your information in a digital safe, such as the i-DEPOT from the Benelux Office for Intellectual Property (BOIP).

Conditions for protection under the Act

You are only protected by the Act if your trade secret meets the following conditions:

• Your trade secret should really be a secret. It does not consist of information that is broadly known or easy to find, or otherwise publicly accessible.
• Your trade secret should have value. The information is valuable because of its secrecy. For example, the production process of a certain kind of paint, or recipes for food or drinks.
• You must have taken precautions to keep the information secret. 

You do not have to register your trade secret for it to be protected by the Act. A trade secret arises automatically, by operation of law, if it meets these requirements.

What to do in case of a breach?

If someone obtains, uses, or discloses your trade secret without permission this constitutes a breach of your trade secrets. 

Examples are:

• theft
• copying without authorisation
• economic espionage
• breaching a non-disclosure agreement
• publication

You can then go to court and invoke the Trade Secrets Protection Act. You can ask the judge to:

• ban them from making any products using your trade secret
• ban them from making your secret public
• confiscate any products made using your trade secret
• recall any of these products from shops and have them destroyed
• impose damages
• make the judicial ruling public

Protection from breaches

To protect your trade secrets from breaches, you can take a number of measures (in Dutch):

• You can employ physical security, such as guards or security cameras to protect your business, safe, or closed archives.
• You can limit electronic access by improving digital security, for instance by using passwords and end-to-end encryption.
• You can put trade secrets in a digital vault, such as the i-DEPOT.
• You can make explicit arrangements with employees through non-compete clauses, confidentiality declarations in contracts, and labour protocols.
• You can make explicit arrangements with business partners through confidentiality or non-disclosure agreements.
• You can train employees and vendors in handling your confidential information.

Trade secret or patent?

You can apply for a patent for your product or process. A patent gives you ownership rights. If you choose to patent your product or process, the product or process must meet specific requirements, your innovation will be public, and the patent is valid for at most 20 years.If the conditions for a patent are not suitable for your product or process, your trade secret is protected by the Trade Secret Protection Act.