Unlawful acquisition, use and disclosure of a trade secret

Unlawful acquisition, unlawful use and unlawful disclosure are the three infringements of trade secrets sanctioned by Articles L. 151-4 to L. 151-6 of the Commercial Code, which can be consulted on Légifrance, resulting from the transposition of the European Directive on the protection of undisclosed know-how and business information. Unlawful acquisition is the usual starting point of disputes: it characterises the act by which a third party takes hold of the secret.

Unlawful acquisition

First, acquisition is unlawful where it results from unauthorised access to any document, object, material, substance or file containing the secret or from which it can be deduced, or from their unauthorised appropriation or copying. Next, it is unlawful where it results from any other conduct considered, having regard to the circumstances, as unfair and contrary to honest commercial practices. Finally, acquisition is lawful where it results from independent discovery or creation, or from the observation, study or disassembly of a product made available to the public, which founds the lawfulness of reverse engineering in the absence of a clause to the contrary.

Unlawful use and disclosure

Use or disclosure is unlawful where it is carried out by a person who acquired the secret unlawfully, or who acts in breach of an obligation not to disclose it or to limit its use, whether legal or contractual. It is also unlawful where its author knew or ought to have known that the secret had been obtained from a person who was using or disclosing it unlawfully. The production, offering, placing on the market, import or storage of goods that significantly result from an infringement of the secret are also unlawful where their author knew or ought to have known that the secret was being used unlawfully. Exceptions protect freedom of expression, the revealing of misconduct by a whistleblower and the information of employee representatives.

Key points

In practice, proof of unlawful acquisition rests on bailiff reports, IT forensic expertise, investigative measures and, where appropriate, a seizure authorised on ex parte application, with the necessary confidentiality measures . Sanctions include injunctions, destruction or recall of the goods, publication of the decision and damages calculated under the same heads as in infringement. The firm acts in these disputes, as presented on the page trade secrets lawyer.