Simont Braun - Avocats advocaten lawyers

Know-How and Trade Secrets

Innovation is a process in which protecting secrecy is critical, whether in a context of an employment or of any other cooperation arrangement involving the inventor, designer, author, draftsperson, business strategist, communications/media agency, etc. Non-disclosure and confidentiality are not always adequately secured. Even before the registration of IP rights, confidentiality of the subject matter must be effectively maintained. Electronic storage and communication systems bring the issue into sharp focus on a day-to-day basis.

Once acquired or used, multiple aspects of the business activity must be protected from theft, other irregularities and various forms of copying; highly valuable assets may be at risk. In the absence of registration for protection, precautionary measures are required.

Litigation over secrecy is always problematic.

The protection of undisclosed know-how and business information has been harmonised in Europe since 9 June 2018 under Directive (EU) 2016/943 (Trade Secrets Directive), which requires the implementation and documentation of "reasonable steps under the circumstances" to keep relevant information secret. We consequently anticipate changes in litigation.

Our fields of expertise

Simont Braun assists in the organisation of internal procedures to protect secrets and in the drafting non-disclosure agreements (NDAs). We also draft appropriate similar clauses for employment contracts and all types of business contracts (R&D, licences, distributorship, agency agreements, joint ventures, etc.).

Litigating in this field calls for precautionary measures and raises delicate procedural issues for which our team is able to offer the required expertise. Our litigation experience enables us to anticipate potentially litigious questions when drafting contracts and structuring transactions.

Our advisory and enforcement assistance includes linking such issues with other forms of protection, such as the prohibition of unfair market practices, copyright and unregistered design protection.

Some recent projects

  • Handling confidentiality aspects during the preliminary findings procedure (saisie-contrefaçon, or beslag inzake namaak) for the claimant or the visited party;

  • Litigation over misconduct by a former employee regarding misuse of information and related practices undermining fair competition;

  • Drafting of confidentiality policies and contracts, also including aspects relating to personal data protection.