The European Union has adopted directive EL 2016/943. This aims to harmonise regulation of protection of undisclosed know-how and business information, to ensure the smooth functioning of the EU internal market. The purpose of the directive is to ensure protection of trade secrets against unlawful acquisition, use and disclosure in the internal market. For this purpose, an unambiguous definition of trade secrets has been created, including know-how, business and technological information. In addition, the circumstances where applying legal remedies for protecting business secrets are justified were established. Member States have to implement the directive into domestic legislation no later than on 9 June 2018.
The plan is to implement the Trade Secrets Protection Directive in Estonia via new legislation – the Ministry of Justice is currently drafting the Unfair Competition Act. As a result of implementation, the term “confidential information” will disappear from the Competition Act and will be replaced by the term “trade secret”. So far these terms were used in parallel.
Under the new law, a “trade secret” will be defined as information which is not entirely or partly general knowledge, or not accessible to persons who are normally exposed to this type of information. This information needs to possess a commercial value which must derive from the confidentiality of the information. In addition, a person exercising control over the information must have applied necessary measures to keep the information confidential. Together with the definition of “trade secret”, many other new terms are introduced, such as “the owner of a trade secret” and “products that infringe rights regarding trade secrets.
In addition, the plan is to supplement current regulation of unfair competition and the legal remedies available for violations. Moreover, procedural measures are specified for the protection of trade secrets, for instance, maintaining the confidentiality of trade secrets during court proceedings. So far, this has been the main obstacle for owners of trade secrets for initiating court proceedings to protect their right to trade secrets.