The unlawful acquisition, use and disclosure of a trade secret

If the holder of a trade secret observes that his trade secret has been illegally procured, used or disclosed by a third party, he can take action against such acts. The Act of 30 July 2018 on the protection of trade secrets provides a legal framework for such cases, in particular modifying the Code of Economic Law and the Judicial Code. Belgian legislation also contains two additional protection mechanisms, if an employment contract is involved.

See also Trade secrets: protection by secrecy of inventions, know-how or information

Protection of trade secrets with regard to third parties 

The modifications made by the act on the protection of trade secrets to the Code of Economic Law and the Judicial Code allow businesses to bring a case before a judge, if someone violates their trade secrets. For example, if someone illegally procured, used or disclosed a trade secret. The legislation sets out certain measures and procedures. In particular, you can ask the judge to:

• ban someone procuring, using or disclosing the trade secret or force a cessation, if the secret is already being procured, used or disclosed;
• ban the production or marketing of products made with the help of your trade secrets;
• order the seizure of the infringing products or order the products to be returned to you;
• recall these products, withdraw them from the market or destroy them;
• award damages;
• publish a legal ruling.

Certain measures can also take the form of interim measures, before a ruling on the merits of the case. For most measures regarding the merits, the holder of the trade secrets may use an injunction procedure, which allows the ruling on the merits to take place sooner.

The Judicial Code contains a confidentiality obligation for any person who learnt a trade secret as a result of his involvement in a legal procedure (Article 871bis of the Judicial Code). This obligation applies both during and after the proceedings.

Protection of trade secret with regards to employees

Belgian legislation includes two additional protection mechanisms which can be used, if a trade secret is violated in the context of an employment contract:

• The law on employment contracts prohibits employees from illegally obtaining, using or disclosing a trade secret that they learnt in the course of their professional activities. This ban applies to employees both during their employment contract and after its termination (Article 17 of the law on employment contracts). The same applies to secrets relating to personal or confidential matters that employees may have learnt.
• The violation of trade secrets by an employee is also a criminal offence punishable by imprisonment and/or a fine (Article 309 of the Penal Code).