Confidential business know-how is now significantly better protected with the EU (Protection of Trade Secrets) Regulations 2018 which came into effect in June.

The new regulations beef up the formal protection for trade secrets into line with other types of intellectual property rights, according to a Mason Hayes & Curran briefing.

A trade secret is defined as valuable and confidential business information that gives the business a competitive advantage.

• It is secret in the sense that it is not generally known, 
• It has commercial value because it is secret,
• It has been subject to reasonable steps to keep it secret.

This excludes trivial information and the normal experience and skills gained by employees.

There are three tests of a trade secret:

• Is the information actually secret or is it more broadly known in the industry?
• Does the information have commercial value, actual or potential? Businesses must demonstrate that if the information is released into the public domain, they would suffer real harm,
• What efforts are made to maintain secrecy? Businesses must make reasonable efforts to keep it secret and these will be assessed objectively. This means it will be increasingly important for businesses to have trade secret protection guidelines.

Where a trade secret is unlawfully used, the regulations set out a variety of remedies such as injunctions, corrective measures such as recall or destruction of infringing goods, and damages are available to protect the trade secret owner.

Failure to comply

A person who contravenes or fails to comply with court orders commits an offence and is liable to a fine and/or imprisonment for up to six months.

Mason Hayes & Curran points out that Irish businesses must ensure that their essential trade secrets are protected in a similar manner to their other intellectual property rights. 

Clear policies

It says businesses should focus on what constitutes a trade secret and begin developing clear policies and guidelines, especially in areas such as use by third parties and data access requests.