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SECRET

TRADE SECRETS concern secret or proprietary information of commercial value. These are not covered by specific statutory provisions as other types of IP are, although there could be aspects of e.g. contract law, employment law that might be relevant in a particular case. The level of protection conferred to trade secrets varies significantly from country to country. The notion of secret is mentioned in the Commission Regulation No 772/2004 as that "not generally known or easily accessible"5 . This secret keeps somebody's idea separate from the knowledge of his competitors in the market. Indeed, the secret represents an interest for its holder. This interest is often a competitive advantage with regard to his competitors. Know- how is defined as "a package of non-patented practical information, resulting from experience and testing, which is: secret, substantial and identified?.6 It is composed by a group of information with economic value, not accessible to the public, transferable and non-patented. But, can ideas be considered as part of the information protected under a trade secret? Ideas may fall under trade secret and know-how protection in so far as they contain useful and technical information, required for the manufacture of a product or related to the enterprise, customers, etc., and which is not accessible to the public and not already patented. Trade secrets do not receive any protection from intellectual property rights, even though a doctrinal discussion exists on this issue and some authors consider trade secrets themselves as an IPR. In any case, they could fall under the scope of protection of civil law and unfair competition law (increasingly harmonised at European level in last years). Indeed, a trade secret or know-how may be kept by including appropriate rules in an employment contract or by using specific confidentiality agreements (see III. A). In addition, some countries also provide penal sanctions for persons who fraudulently disclose an industrial secret.

Please read our briefing paper on the The legal protection of trade secrets