Trade secrets: how do you protect them under Dutch law?

A trade secret is protected under Dutch law only if you took reasonable measures to keep it confidential. The Trade Secrets Act (Wet bescherming bedrijfsgeheimen, Wbb), in force since 23 October 2018, protects information that is secret, has commercial value because it is secret and is covered by such measures; independent discovery and lawful reverse engineering are not an infringement.

This article explains those measures and how you act against an infringement. Our article on der rechtliche Rahmen für Geschäftsgeheimnisse legt die gesetzlichen Prüfungsmaßstäbe und Rechtsbehelfe vollständig dar.

Was ist ein Geschäftsgeheimnis?

Business information is a trade secret if it meets three cumulative conditions under Article 1 Wbb. It is secret, it has commercial value because it is secret, and you have taken reasonable steps to keep it secret.

Geheimnis. Under Article 1 Wbb the information must not be generally known or easily accessible, including to experts who normally deal with this type of information.

Kommerzieller Wert. The value must come from the secrecy itself. Unlawful use or disclosure would harm your business, financial or strategic interests or your competitive position.

The definition in Article 1 Wbb is broad. It covers production processes, formulas and recipes, but also concepts, research data, price agreements and customer files.

Which measures count as reasonable?

Measures that fit the value of the information and the size of your business. The court looks at what you actually did, not at what you could have done, so record your measures.

• Digital security: passwords, encryption, access logs and limited user rights.
• Confidentiality clauses in employment contracts and non-disclosure agreements (NDAs) with partners and suppliers.
• Clear labelling of confidential documents and files.
• A written policy on who may access which information, and instructions for employees who leave.

An example to illustrate: a sales employee copies your customer list and price agreements before joining a competitor. If the list met the three conditions of Article 1 Wbb, you can act against both the employee and the new employer, whether or not there was a non-compete clause.

Wann liegt ein Verstoß vor?

Under Article 2 Wbb, acquiring, using or disclosing a trade secret without your consent is unlawful, as is producing, offering or marketing goods that infringe it. No registration is needed: protection arises as soon as the conditions of Article 1 Wbb are met.

Unlawful use can also follow from breach of a non-disclosure agreement or another contractual duty that limits use of the information. Article 3 Wbb lists what is not unlawful: independent discovery, and reverse engineering of a product that was made available to the public or that the person obtained lawfully.

Article 4 Wbb adds grounds on which the court rejects a claim. Examples are the exercise of freedom of expression, disclosure of misconduct in the public interest (whistleblowing) and disclosure by employees to their representatives, such as the works council.

How do you act against an infringement?

Through interim relief for speed, or main proceedings for final measures and damages. Both routes are set out in the Wbb.

Under Article 5 Wbb, the preliminary relief judge (voorzieningenrechter) in summary proceedings (kort geding) can order interim and protective measures. Examples are a ban on using or disclosing the secret, a ban on producing or marketing infringing goods, and the seizure of such goods.

Under Article 6 Wbb, the court in main proceedings can order corrective measures: recall of infringing goods, removal of the infringing feature, destruction of goods, and return or deletion of documents and data carriers. Under Article 8 Wbb, you can claim damages if the infringer knew or should have known that the acquisition, use or disclosure was unlawful.

In trade secret cases the court can also order the losing party to pay your reasonable and proportionate legal costs, instead of the lower standard scale. The legislator intended this to be applied with restraint, so do not count on full reimbursement.

What should you check as the holder of the information?

• Which information is your trade secret, and is it listed and labelled as confidential?
• Who has access, and is that access logged and limited?
• Do employment contracts and NDAs contain a confidentiality clause with a penalty?
• Do departing employees return laptops and data carriers, and do you check this?
• Can you show the court the measures you took, with dates?

What should you check as an employee or new employer?

• Did you take documents, files or customer lists from a previous employer?
• Does your previous employment contract contain a confidentiality or non-compete clause?
• Is the information really secret, or is it generally known in the sector?
• As a new employer: have you instructed the new employee in writing not to use a former employer’s information?

What can we do for you with trade secrets?

Unsere Unternehmensanwälte help companies protect information and act quickly when it leaks.

• We review your confidentiality measures against the test in Article 1 Wbb.
• We draft confidentiality clauses, NDAs and an information policy.
• We send a cease-and-desist letter to the infringer and the new employer.
• We apply for seizure of evidence or infringing goods and start summary proceedings.
• We conduct main proceedings for corrective measures and damages.

Zusammenfassung

• A trade secret is protected if it is secret, has commercial value because it is secret and is covered by reasonable measures.
• Protection under the Wbb arises automatically; there is no register.
• Independent discovery, lawful reverse engineering and whistleblowing are not an infringement.
• You can seek interim measures in summary proceedings and corrective measures and damages in main proceedings.

Häufig gestellte Fragen