Vláda navrhuje zpřesnit úpravu porušení obchodního tajemství

Since mid-January, a government amendment has been in the consultation process aimed at clarifying the Czech legal framework for protection against trade secret violations. The goal is to ensure better alignment of Czech regulations with the European Parliament and Council Directive (EU) 2016/943 of June 8, 2016, on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use, and disclosure. The most significant part of the changes is expected to concern the Civil Code.

First and foremost, it should be noted that the government does not seek a radical change in the concept of trade secrets, nor does it aim to change its definition. The proposed amendment seeks to modify the current regulation of protection against trade secret violations. Currently, a violation of a trade secret is one of the specific forms of unfair competition.

The existing classification of trade secret violations under the legal framework of unfair competition results in a limitation of trade secret protection due to the necessity of fulfilling all the conditions of the so-called general clause of unfair competition contained in Section 2976 of the Civil Code. Among these is the condition of acting in economic dealings, while violations of trade secrets can, in exceptional cases, occur outside of them.

Therefore, the government amendment proposes separate provisions regulating trade secret violations that will be entirely independent of the legal framework of unfair competition. However, it will still hold that a violation of a trade secret within the context of economic dealings falls under the definition of unfair competition.

Significant changes are also expected in the definition of trade secret violations. The current definition has been very brief and, for example, only accounted for the unlawful disclosure or use of trade secrets, but did not explicitly include the unlawful acquisition itself.

The new definition is expected to be significantly more comprehensive: it will include three basic forms of violation: unlawful acquisition of a trade secret, unlawful disclosure of a trade secret to another person, and unlawful use of a trade secret for oneself or for another.

The definition will also include additional examples of prohibited conduct, such as the import, export, or storage of a product violating a trade secret for the purpose of its manufacture, offering, or marketing. It will also clarify in which cases the acquisition and disclosure of a trade secret are unlawful. The same rules will apply to persons who have acquired a trade secret from another, provided they could and should have known that it was acquired unlawfully.

The Civil Code is also expected to include a list of situations in which a violation of a trade secret will explicitly not be considered unlawful. Such cases may include the acquisition of a trade secret through independent discovery or creation, examination of an object that a person has lawfully in their possession, or during the exercise of employees' rights to information.

Authors:

Jan Turek

Tomáš Černý