Law 4605/2019, Article 1, added articles 22Α,22Β,22Γ,22Δ,22Ε,22ΣΤ, 22Ζ,22Η,22Θ,22Ι, 22Κ to Law Ν 1733/1987 (Greek Patent Law), therefore harmonising Greek Law to the requirements set by DIRECTIVE (EU) 2016/943 of the European Parliament and the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against unlawful acquisition, use and disclosure. We have listed and summarised the relevant provisions
The critical factors to characterise any information as a “trade secret” are:
- the fact that the information in question is not generally known among experts within certain circles that normally deal with that kind of information
- its commercial value
- the effort of the person lawfully in control of such information to keep it secret.
Apart from that provided for trade secrets, protection is also provided against infringing goods.
The term of “infringing goods” is interpreted as goods, the design, characteristics, functioning, production process or marketing of which significantly benefits from trade secrets unlawfully acquired, used or disclosed.
Exceptions from judicial protection under the relevant provisions are set out in paragraph 7 of Article 22B of the above-mentioned Act, and to be more specific, the claim for implementation of the Articles 22Δ-22Ι is dismissed when the trade secret’s acquisition, use or disclosure was carried out:
- for exercising the right to freedom of expression
- for revealing misconduct, wrongdoing or illegal activity
- in the sense of a disclosure by workers to their representatives as part of the legitimate exercise
- protecting a legitimate interest recognised by Union or national law.
Under the provisions in Article 22Δ, any interested party has the right to duly apply for a trade secret’s or an alleged trade secret’s non-disclosure claim during legal proceedings. That power can be also exerted by the competent judicial authorities on their own initiative. The relative obligation remains in force even after the termination of the legal proceedings and ceases to exist only when the information in question is found, by a final decision, not to meet the requirements of the term “trade secret” or when it becomes over time generally known or accessible to people within the circles with the same or a similar field of expertise. The protection measures are comprised of the limited access to documentation involving trade secrets among the parties to the proceedings’ and the issue of a non-confidential (short) version of the decision omitting any trade secret details.
In Article 22E, provisional and precautionary measures are set out against the alleged infringer, such as the cessation and the prohibition of the infringement in the future, the prohibition of any action involving infringing goods and the seizure or delivery up of the suspected infringing goods. Alternatively, the competent authorities may relate the continuation of the infringement to the lodging of guarantees so as the trade secret holder can be compensated. In any case, the disclosure of a trade secret in return for the lodging of guarantees is not allowed.
The applicant of provisional and precautionary measures shall appear before the Court of First Instance (constituted by a single judge) and provide any evidence in support of his claim. Proportionality and the special conditions of each case must be taken into consideration in the process of decision making, according to paragraph 2 of Article 22ΣΤ. The interested party asking for provisional and precautionary measures is obliged to file a lawsuit within 20 working days or 31 calendar days starting from the day of issue of the Decision on the provisional and precautionary measures application, otherwise this Decision’s results are automatically annulled. These measures can also be revoked after the respondent’s demand if they don’t meet the requirements of paragraph 4 of Article 22A due to reasons irrelevant to his attributions. In case of annulment, the competent judge has the authority to impose paying a reasonable compensation fee on the under the 22E measures applicant to the respondent, or the injured third party, upon their request, for any injury caused by those measures. The claim of the compensation shall be subject to a separate legal procedure.
22Ζ: Judicial protection and restitution:
- the cessation of or the prohibition of the use or disclosure of the trade secret
- the prohibition of the production, offering, placing on the market or use of infringing goods, or the importation, export or storage of infringing goods for those purposes
- the adoption of the appropriate corrective measures regarding the infringing goods
- the destruction of all or part of any document, object, material, substance or electronic file containing or embodying the trade secret or, where appropriate, the delivery up to the applicant of all or part of those documents, objects, materials, substances or electronic files.
! Note that the measures in the underlined points above shall be applied without prejudice to any damages that may be due to the trade secret holder and provided by this Act.
- recall of the infringing goods from the market
- depriving the infringing goods of their infringing quality
- destruction of the infringing goods or, where appropriate, their withdrawal from the market, provided that the withdrawal does not undermine the protection of the trade secret in question.
22Η: The competent judicial authorities have the power to pose a limit on the duration of the measures referred to in points (a) and (b) of Article 22Z(1), such duration shall be sufficient to eliminate any commercial or economic advantage that the infringer could have derived from the unlawful acquisition, use or disclosure of the trade secret. These measures can be also revoked or cease to exist, after the respondent’s demand, if in the meantime they don’ t meet the requirements of paragraph 4 of Article 22A due to reasons irrelevant to his attributions. After the respondent’s demand, it is possible that the competent authorities ordered pecuniary compensation to be paid to the injured party instead of applying those measures if:
- the liable person concerned at the time of use or disclosure neither knew nor ought, under the circumstances, to have known that the trade secret was obtained unlawfully
- execution of the measures in question would cause that person disproportionate harm and
- pecuniary compensation to the injured party appears reasonably satisfactory.
Pecuniary Compensation: not exceeding the amount of royalties or fees which would have been due, had that person requested authorisation to use the trade secret in question, for the period of time for which use of the trade secret could have been prohibited.
22Θ: Damages appropriate to the actual prejudice suffered as a result of the unlawful acquisition, use or disclosure of the trade secret.
Limited liability is provided for damages of employees towards their employers for the unlawful acquisition, use or disclosure of a trade secret of the employer where they act without intent.
Factors to be taken into consideration when setting the damages: negative economic consequences and the moral prejudice.
Alternatively, the competent judicial authorities may, in appropriate cases, set the damages as a lump sum and as high as, at a minimum, the amount of royalties or fees which would have been due had the infringer requested authorisation to use the trade secret in question.
22I: Appropriate measures for the dissemination of the information concerning the decision are provided, including publishing it in full or in part. Decisive factors: the value of the trade secret, the infringer’s behavior, the impact of the unlawful use or disclosure of the trade secret, and the likelihood of further unlawful use or disclosure of the trade secret by the infringer. As for the information about the infringer, the competent authorities have to take into consideration the teleological aspect of such a reveal and the impact on his identification as a natural person, not to mention the potential damage of his.
22K: Non compliance with Articles 22Δ, 22E & 22Ζ→sanctions
§ 2: Non compliance with Articles 22E & 22Ζ→ recurring penalty payments
§ 3: National Correspondent: Hellenic Industrial Property Organisation (OBI).
Sanctions are imposed upon Finance Minister’ s Decision after the reasoned Opinion of OBI.