What is a "Trade Secret"?

The Trade Secrets (Enforcement, etc.) Regulations 2018 No 597 aim to harmonise protection for trade secrets throughout the EU in accordance with Trade Secrets Directive.

“Trade secret” is defined broadly in line with the WHO TRIPS Agreement, as information that: is secret, in that it is not generally known among or readily accessible to relevant persons in the field; has commercial value because it is secret (i.e. its unauthorised use or disclosure would undermine the holder’s scientific/technical potential, financial interests, strategic position or ability to compete); and has been subject to reasonable steps to keep it secret.

There is as yet no clear guidance on what are “reasonable steps” might entail.

Acquisition of a trade secret is unlawful where it results from unauthorised access to materials or other conduct which is contrary to “honest commercial practices”, or was acquired from a third party, and the acquirer knew – or should have known – that the third party was acting unlawfully.

Actions for breach can give rise to a range of civil remedies including injunctions to prevent further misuse, compensatory damages and an account of profits. There are no criminal
sanctions.