New trade secret rules will improve the possibility of damages

The new EU Directive on trade secrets will improve the rightsholders' possibility of receiving damages for abusing trade secrets.

The new EU Directive on trade secrets adopted on 27 May 2016 contains a number of new measures to strengthen the protection of trade secrets against unlawful acquisition, use or disclosure. 

One of the measures is that it will now become easier to receive damages. Article 14 of the Directive stipulates that when calculating the damages for unlawful acquisition, use or disclosure of trade secrets the Member States cannot only take into account the loss that the rightsholder has suffered but can also take into account the infringer's unlawful profit from the action in question.

The possibility of taking into account the infringer's unlawful profit deviates from general Danish law of damages which stipulates that only the injured party's loss is to be taken into account. As damages for any violation of section 19 of the Danish Marketing Practices Act on trade secrets must be calculated in compliance with the general Danish law of damages, it is not possible at this point in time to take into account the infringer's profit when calculating the damages in such cases.

The new rule corresponds to what has been the case since 2000 in the event of an infringement of intellectual property rights under intellectual property law. The law of damages of intellectual property law is based on a corresponding rule of the 2004 Enforcement Directive. When implemented into Danish law, the new rule of the EU Directive on trade secrets will consequently bring the calculation of damages in the event of any abuse of trade secrets in compliance with the intellectual property rules.

The rules of the Directive must be implemented into Danish law on 9 June 2018 at the latest and naturally we will follow the implementation process closely.

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