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The Trade Secret Directive has now been implemented into Greek Patent Law

posted 5 years ago

The know-how is a very
important feature for the success of a company. The companies therefore have a
serious interest in protecting their trade secrets by the national jurisdictions.
Nevertheless, until recently, there were no specific provisions in Greek law which
would explicitly protect the trade secrets of a company.

Within the countries of the
European Union, there was only a small level of harmonization in this regard.
The European Union therefore released Directive 2016/943 for the protection of
know-how and trade secrets. The Greek legislator has now implemented this
Directive into Greek law, by including specific provisions in the Law No.
1733/1987, the Greek Patent Law. The related amendments were published on May 28,
2019. The Greek law now provides specific regulations with regard to the
protection of know-how and trade secrets in the new articles 22A – 22K of the
Patent law. The Greek provisions are mainly a translation of the related
articles of Directive 2016/943.

The new Greek provisions require
the person lawfully in control of the trade secret to take measures to keep it
secret, otherwise the rights are not granted. Therefore, the measures taken by
the owner of the trade secret are a requirement for the existence of
protection.

Furthermore, several articles
with regard to the protection of trade secrets before the courts were included
in the Patent Law. According to Art. 22 D par. 2 of the Patent Law, the Court
can take specific measures necessary to preserve the confidentiality of any
trade secret or alleged trade secret used.

The provisional and
precautionary measures from Art. 10 of Directive 2016/943 are implemented in the
new Art. 22 E of the Patent Law. The protection is provided as preliminary
proceeding. However, according to Greek law, a requirement of preliminary
proceedings is the urgency of the case. The provisional and precautionary
measures will only be granted in cases which are, according to Greek law,
urgent.

With regard to damages, Art.
22 H of Law No. 1733/1987 fully applies the wording of Art. 14 of Directive
2016/943. According to Art. 22 H par. 1, the infringer has to pay compensations
to the trade secret holder. In this regard, when setting the damages, “the court
takes into account all appropriate factors, such as the negative economic
consequences, including lost profits, which the injured party has suffered, any
unfair profits made by the infringer and, in appropriate cases, elements other
than economic factors, such as the moral prejudice caused to the trade secret
holder by the unlawful acquisition, use or disclosure of the trade secret”.  However, it remains to be seen how the Greek
Courts will practically apply this in Greece, as there are two issues which the
Greek legislator failed to take into account:  First, the new provisions provide in Art.  22 H par. 1 only a compensation claim, but
not a moral damage claim. Moral damages are only included in Art. 22 H par. 2,
where it is specified how the compensation claim is calculated. However, according
to Greek legal theory, compensation and moral damages are different legal claims.
A compensation claim is a specific damage, such as lost profit, while the moral
damage cannot be specifically calculated and is usually related to the fame of
the company. If the Greek legislator had the intention to grant moral damages
as well, he should have included a specific moral damage claim in Art. 22 H
par.1 of the Patent Law.

Furthermore, in contrast to
other jurisdictions, the plaintiff has to specify his compensation claim already
when he files the action; it is not possible to specify the compensation claim
at a later stage of the proceeding. Therefore, as the Plaintiff will most
probably not have information with regard to the profit of the infringer, it
will be practically impossible that the Plaintiff will calculate his damage
claim based on the infringer’s profit.

It remains to be seen how
the Greek case law and legal theory will find solutions for these legal issues.

 

Due to the fact that
measures have to be taken to keep the information secret, it is necessary that
all companies who are active in Greece develop strategies on the protection of
trade secrets. Any disclosure of secret information will have the result that
these are not protected anymore and are free to be used by competitors. Potential
measures in this regard include security systems, encryption of communications,
access barriers, non-disclosure agreements, etc.

 

 

Dr. Henning Voelkel, LL.M.

 

Voelkel Kataliakos Roussou Law Office

49, Mavromichali Street,

http://www.vokalaw.gr 

 

About the Author:

Dr. Voelkel is an expert in IP law in Greece, especially in patent,
plant variety and trademark cases. Dr. Voelkel is included in “IAM 1000” as one
of the Leading Professionals Worldwide and has been awarded by “Global Law
Experts” and “Finance Monthly Global” as leading expert concerning IP
litigation in Greece.

Author

posted 4 days ago

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