On November 28, 2013 the European Commission published a draft of Directive aimed to harmonize the protection of trade secrets and of know-how against its unlawful acquisition, use and disclosure.

In the Explanatory Memorandum attached to the draft directive, the European Commission states that the most efficient approach “to improve the conditions for innovative business activity” is to enhance the protection of the “knowledge of substantial economic value that often does not qualify for IPR protection, [...] but which is equally important for innovation and for the competitiveness of businesses in general”.

The Draft qualifies as “trade secrets” any information meeting the following requirements:

“(a) is secret in the sense that it is not […] generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;

(b) has commercial value because it is secret;

(c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret”.

The draft also requires that Member States shall ensure protection through interim and precautionary measures aimed to:

“(i) the cessation of or, as the case may be, the prohibition of the use or disclosure of the trade secret on an interim basis;

(ii) the prohibition to produce, offer, place on the market or use infringing goods, or import, export or store infringing goods for those purposes;

(iii) the seizure or delivery of the suspected infringing goods, including imported goods, so as to prevent their entry into or circulation within the market”.

Lastly, the Draft requires to ensure compensation for damages to be determined taking into account “all appropriate factors, such as the negative economic consequences, including lost profits, which the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, such as the moral prejudice caused to the trade secret holder by the unlawful acquisition, use or disclosure of the trade secret”.

Articles 98 and 99 of the Italian Intellectual Property Code already foresee a similar discipline.

The proposed Directive will now be transmitted to the Council of Ministers and to the European Parliament to be finally adopted.