Why are trade secrets important?
Trade secrets make a company unique and therefore a company can distinguish itself from a competitor. Properly managing these secrets is vital for a company. Without trade secrets, even the continuity of a company can be jeopardized. This indicates the need to be extremely careful with trade secrets. However, it is so ‘natural’ to work with the trade secrets that often no thought is given to protecting the trade secrets; to control the secrets. And then it may be too late.
Trade secrets appear in company data and in personal data. With a trade secret that is a company data, you can think of a certain recipe or the market strategy of a company. Personal data that is a trade secret concerns, for example, a customer file or the employee file. In short: a trade secret is a subset of your company or personal data that you do not want anyone else to know without your consent.
How can we help you?
Do you have questions about organizing, implementing or expanding your trade secrets? Our service owner, Caroline Willemse or her colleagues, would be happy to discuss your specific case.
Since 2018, the Netherlands has a law for trade secrets, the Trade Secrets Protection Act (TSPA). This law helps you protect your trade secrets and – if necessary – enforce your rights in the event of a breach. This law can only help you if the trade secret is secured to keep secret. If you have not complied with this condition, a judge can determine that too few measures have been taken to keep the trade secret secret.
The relationship between company and personal data
As indicated, trade secrets are a subset of company and personal data. A company records its trade secrets in a register, indicates which control measures have been taken in the business processes and collects evidence of the effective operation of the control measures. It monitors the registered incidents and data leaks and conducts investigations into the effectiveness of the control measures taken.
The TSPA offers possibilities to protect your company secrets. You can go to court in the event of a violation of your rights, but you will have a better chance of success if you can demonstrate that the control and security measures were appropriate and effective. We can help you take the right steps to protect your trade secrets.
Based on an approved plan of action, we will enter into discussions with you and your employees to identify, describe and register the trade secrets. A risk analysis is then performed on the basis of which the optimal mix of control security measures can be compiled. In collaboration with your employees, we also draw up a policy and awareness and training programs so that there is clarity within your organization about what your company secrets are and how they should be handled.
One important security measure is agreeing nondisclosure agreements with the individuals with whom the trade secrets are shared. In addition to employees, these are also third parties such as suppliers and freelancers. The agreements must specifically include which trade secrets are shared with the person and which (security) agreements must be adhered to.
We help you regularly determine that the measures are working effectively. It is necessary to document this execution in order to demonstrate that your company is constantly working to keep its business secrets secret and also establishes this.
In general terms, the following project steps are being taken:
- Baseline measurement on your trade secrets. Identifying, establishing, contracting and recording trade secrets;
- Implementation process to implement the points for improvement;
- Arranging security measures based on a risk profile;
- Determining with whom trade secrets should be shared and thereby making contractual agreements in nondisclosure agreements;
- Establishing that security measures are demonstrably effective, including compliance with agreements in the agreements; and
- Raising awareness and training your employees.