On 10 July 2018, the Competition Council published for public debate a draft Government Emergency Ordinance on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (the “Trade Secrets Draft GEO“) – the draft GEO implements EU Directive 2016/943/UE into the national legislative framework.
Under the Trade Secrets Draft GEO, a person may file a court action based on unlawful acquisition, use or disclosure of trade secret, within 6 years since the claimant knew or should have known the acquisition, the use or disclosure of their trade secret. In such case, the court has the power to order one or more of the following measures against the infringer:
- the cessation of or, as the case may be, the prohibition of the use or disclosure of the trade secret;
- the prohibition of the production, offering, placing on the market or use of infringing goods, or the importation, export or storage of infringing goods for those purposes;
- the adoption of the appropriate corrective measures with regard to the infringing goods: (i) depriving the infringing goods of their infringing quality; (ii) destruction of the infringing goods or, where appropriate, their withdrawal from the market, provided that the withdrawal does not undermine the protection of the trade secret in question.
- the destruction of all or part of any document, object, material, substance or electronic file containing or embodying the trade secret or, where appropriate, the delivery up to the applicant of all or part of those documents, objects, materials, substances or electronic files.
Moreover, the court may impose damages against the infringer for the lack of compliance with the court’s temporary prohibitions or court’s final decision, in the amount of 1% of the infringer’s annual turnover for the previous fiscal year per day.
The Trade Secrets Draft GEO provides that the acquisition of a trade secret without the consent of the trade secret holder shall be considered unlawful, whenever carried out by: (i) unauthorised access to, appropriation of, or copying of any documents, objects, materials, substances or electronic files, lawfully under the control of the trade secret holder, containing the trade secret or from which the trade secret can be deduced; (ii) any other conduct which, under the circumstances, is considered contrary to honest commercial practices.
The use or disclosure of a trade secret shall be considered unlawful whenever carried out, without the consent of the trade secret holder, by a person who is found to meet any of the following conditions: (i) having acquired the trade secret unlawfully; (ii) being in breach of a confidentiality agreement or any other duty not to disclose the trade secret; (iii) being in breach of a contractual or any other duty to limit the use of the trade secret.