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When the holder of a trade secret notices that his trade secret has been unlawfully acquired, used or disclosed by a third party, it is possible to take action against such facts. To this end, the law of 30 July 2018 on the protection of trade secrets provides for a legal framework, by modifying in particular the Code of Economic Law and the Judicial Code. In addition, Belgian legislation contains two additional protection mechanisms when an employment contract exists.
Protection of trade secrets from third parties
The amendments made by the law on the protection of trade secrets to the Code of Economic Law and the Judicial Code offer companies the possibility to bring an action before the courts when someone infringes their trade secret. This means when someone has unlawfully acquired, used or disclosed the trade secret. The legislation includes a number of measures and procedures. For example, you can request that the judge:
prohibits the acquisition, use or disclosure of the trade secret by the other party or orders the cessation when it is already taking place;
prohibits the production or placing on the market of products made with your trade secret;
orders a seizure of infringing products or that these products are delivered up to you;
orders to recall these products, to remove them from the market or to destroy them;
orders the publication of the court judgment.
Some measures may also take the form of provisional measures, before making a decision on the merits of the case. For most substantive measures, the holder of the trade secret may bring an action for an injunction, which allows a faster processing of the case on the merits.
The Judicial Code provides for an obligation of confidentiality that applies to any person who, as a result of his participation in a judicial proceeding, would have any knowledge of a trade secret (Article 871bis of the Judicial Code). This obligation applies both during and after the procedure.
Protection of trade secrets from employees
Belgian legislation includes two additional protection mechanisms which, within the framework of employment contracts, may be used in case of infringement of a trade secret:
The employment contract law forbids workers from unlawfully acquiring, using or disclosing a trade secret of which they might have any knowledge during their professional activity. This prohibition is imposed on employees both during the course of the contract and after it is finished (Article 17 of the employment contract law). The same is true of secrets related to personal or confidential matters the worker may have knowledge of.
A worker who divulges a fabrication secret is also committing a criminal offence which is punishable with imprisonment and a fine (Article 309 of the Criminal Code).