Trade secrets

A trade secret may consist of technical, commercial or financial information whose secrecy has commercial value. Examples include confidential know-how, manufacturing processes, test data, pricing information, business strategies and financial plans. Confidentiality alone does not establish statutory trade secret status.

The requirements for trade secret protection

In France, Article L. 151-1 of the Commercial Code requires three cumulative elements: the information is not generally known or readily accessible to professionals in the relevant sector, it has actual or potential commercial value because it is secret, and its lawful holder has taken reasonable steps, in the circumstances, to preserve its secrecy.

The French regime implements the European trade secrets framework established by Directive (EU) 2016/943. It provides specific protection against unlawful acquisition, use and disclosure. Contractual duties and other causes of action may also be relevant, subject to their own requirements.

Preserving confidentiality in practice

Protection should connect the information to identifiable safeguards. Businesses can classify sensitive material, restrict access, use individual permissions, keep records of disclosures and establish procedures for employees, contractors and commercial partners. The measures should reflect the sensitivity of the information and the circumstances in which it is used.

Trade secrets differ from registered patent rights. Their protection should therefore be considered alongside patent strategy and the disclosure that patent protection entails. Lawful independent development and other permitted means of obtaining information also require attention when assessing a dispute.

How an NDA supports trade secret protection

A non-disclosure agreement or confidentiality agreement records restrictions agreed with a recipient. It contributes to reasonable protective measures but does not remove the need to identify the information, its value arising from secrecy and the safeguards actually implemented.

When preparing evidence, connect the signed agreement with the versions disclosed, authorised recipients, access permissions and chronology of exchanges. Our guide to NDA drafting and trade secret protection explains the relationship between contractual clauses, operational measures and claims for breach.

Protecting secrets in litigation

A litigation strategy should address both the alleged misuse and the confidentiality of material produced in the proceedings. Evidence-preservation measures concerning intellectual property rights can themselves raise trade secret issues. Requests should identify the material requiring protection and the procedural measures sought, while taking account of the rights of defence.

Dhenne Avocats acts in trade secret litigation for claimants and defendants, and assists businesses in reviewing their protection arrangements. Discuss a trade secret issue with the firm.

Primary source: French Commercial Code, Articles L. 151-1 et seq., including the provisions governing protection of confidential material in court.

This glossary entry provides general information and is not advice on an individual matter.

Before a dispute arises, our trade secrets protection audit reviews the measures used to identify, protect and document confidential information.