Entry Into Force Of The Law On The Protection Of Trade Secrets

Since 2 July 2019, Luxembourg has had full-blown legislation on trade secrets. After a one-year delay, Luxembourg finally transposed Directive (EU) 2016/943 of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure ("Directive").

The Law of 26 June 2019 on trade secrets1 ("Trade Secrets Law") literally transposes the Directive and provides a legal definition of "trade secrets", which was until now only defined by the courts. The Trade Secrets Law defines as "trade secrets" information which fulfils the three following cumulative criteria: (i) it is secret, (i.e. it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question), (ii) it has commercial value because it is secret and (iii) it has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret. For example, market studies, business plans, customer databases may be trade secrets.

The Trade Secrets Law fills a gap for businesses for which trade secrets have significant commercial value but do not satisfy the conditions to be protected under intellectual property law or are not registered as an industrial property title (on a voluntary basis) because of their confidential nature. From now on, the trade secret holder will have at its disposal an arsenal of measures and remedies (such as prohibitory injunctions, damages and corrective measures) that may be requested from the court against an alleged...

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