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04 July 2018

Secret’s out: new trade secrets regulations come into force

Before the Trade Secrets (Enforcement, etc.) Regulations 2018 came into force last month, a party seeking to protect its trade secrets would rely on case law. So what is different about this new legislation and does it give better protection?

Case law has always sought to balance the protection of trade secrets and intellectual property rights against allowing for fair competition.

The new regulations have created a new statutory claim for the misuse of trade secrets, which can be claimed in addition to a breach of confidence as established under existing case law. In short, “two claims are better than one”!

The regulations also helpfully provide a statutory definition for what amounts to a trade secret. It is a “…secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among, or readily accessible to, persons within the circles that normally deal with the kind of information in question….. “ It  must also have commercial value and the owner has to have tried to keep it secret. There are also new definitions within the legislation such as the term of “infringer” – “a person who has unlawfully acquired, used or disclosed a trade secret”.

However, as these regulations only came into force this month, it still needs to be seen in practice how well they will fit with all the existing case law.

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