Preview of the new Danish trade secrets proposal

Opening the door for new legislation,
the EU Trade Secrets Directive may prove
to create a busy year for Member States

Dark clouds rolled into London today.  Plainly fitting given the news of the Article 50 trigger. So while a generation of stomachs continue to churn in the wake of an unplanned and, for her generation, unwanted exit from the EU, the AmeriKat turned to happier news from her European friends.  The IPKat's Danish friends Sture Rygaard and Emil Jurcenoks from Plesner report on the exciting new national trade secrets law that will come into effect following the EU Trade Secrets Directive.  Sture and Emil report:

"In Denmark, the EU Trade Secrets Directive which came into force on 5 July 2016 (as reported on the IPKat here), will be implemented in an entirely new and independent act on trade secrets. 

Although we have yet to see the proposal for the new act (which we cannot wait to get our paws on), the implementation of the directive

• will introduce a legal definition of trade secrets (which does not exist in Denmark today);

• is expected to improve the right holder's possibilities of being awarded damages in case of unlawful acquisition, use or disclosure of trade secrets, as it follows from Article 14 of the Directive that the court when setting damages should also be able to take into ac-count any unfair profits made by the infringer, which is not possible under the current rules (as opposed to damages for IP infringements governed by the IP Enforcement Directive);

• is expected to lead to new, clearer rules concerning preservation of confidentiality of trade secrets in the course of legal proceedings. The present rules do not allow for a guarantee of confidentiality of trade secrets submitted in court proceedings and do not allow for limiting the access to trade secrets to a limited number of persons; and

• may make it possible to obtain measures for preservation of evidence (search and seizure orders), if the right holder can render it probable that an unlawful acquisition, use and/or disclosure of trade secrets has occurred or will occur, which is today only possible in case of infringement of intellectual property rights (all Kats know that the difficulties connected with obtaining the necessary evidence are, in practice, one of the main reasons right holders often decide not to pursue misappropriation of trade secrets. During a meeting at the Patent and Trademark Office, these GuestKats therefore meowed that the office should consider to either extend the existing rules on preservation of evidence regarding intellectual property rights or adopt a similar set of rules, which the office promised to consider).

The proposal for the new act is supposed to be published just before or after the summer break, and the final act is expected to be adopted with effect as of 9 June 2018, i.e. the date of the deadline for implementation of the directive."

Like in the US, these are exciting times for trade secrets in Europe.  The AmeriKat will be back to report on other Member States efforts in implementing the EU Trade Secrets Directive.