Trade Secret Protection in the Netherlands

This Wednesday, 18 February, I had the privilege of  joining Nancy Samuriwo and Racheal Kyomuhangi in GLE’s Round Table meeting on trade secrets who shared insightful experiences with me. The meeting was kindly hosted by Jenny Brash.

In the Netherlands, trade secrets can be protected against unlawful acquisition, use and disclosure following the implementation of the EU Trade Secrets Directive.

The Directive defines a trade secret through three cumulative requirements:

1. The information must be secret — meaning it is not generally known or readily accessible to persons within the relevant circles (for example, engineers in the case of technical information or sales professionals in the case of customer data).

2. The information must have commercial value because it is secret — in other words, it would lose its economic value if it became public.

3. Reasonable steps must have been taken to keep it confidential.

In any dispute, courts assess these three elements to determine whether the information qualifies as a trade secret and is therefore entitled to legal protection. If a trade secret has been unlawfully acquired, used or disclosed, the law provides for injunctive relief, financial compensation and other corrective measures.

However, legal protection only works if the third requirement — “reasonable steps” — can be demonstrated. And that is where many companies underestimate their exposure.

At V.O., we have developed a Trade Secrets Checklist (available on our website) to help companies assess and strengthen their protection strategy.

The checklist encourages businesses to:

• Categorize how their intellectual property is protected (confidentiality, patents, trademarks, designs, models).
• Map existing registered IP rights.
• Review agreements with external parties such as suppliers, advisers and customers.
• Classify trade secrets by type (technical, financial, operational, strategic) and by department.
• Assess the potential impact of loss of secrecy.
• Evaluate physical, legal, administrative and behavioural protective measures.
• Identify employees involved with sensitive information and their level of awareness.
• Review contractual confidentiality obligations.
• Monitor policy effectiveness and update procedures regularly.
• Analyse past incidents and assess recurrence risks.

Trade secret protection is not achieved through a single confidentiality clause — it requires a coherent strategy, internal awareness and ongoing monitoring.

In today’s competitive environment, protecting know-how is often just as important as registering patents.

However, trade secret protection should not automatically be seen as a substitute for patent protection. It does not prevent competitors from independently developing the same know-how without using your confidential information. In technical fields, competitors may even file patent applications making use of that know-how. If granted, such patents could — depending on the circumstances — pose risks to your own activities.

Having a well-organised system for documenting and managing trade secrets is therefore also important for evidentiary purposes. If it turns out that your use of a trade secret falls within the scope of a later-granted patent, proper documentation may help demonstrate that you had already developed and have been using the technology since before the filing date of that patent. In such situations, and depending on the applicable legal framework, a prior use right may allow continued use of the technology for your own business.