ARTICLE
24 January 2025

Blog 1: Key Trends In Trade Secret Protection Before Belgian Courts

CM
Crowell & Moring LLP

Contributor

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Today's blog post starts a series focusing on European trade secret law issues. We will focus on practical questions and share insights on how Belgian courts use the Belgian Trade Secrets Act...
European Union Intellectual Property

Introduction

Today's blog post starts a series focusing on European trade secret law issues. We will focus on practical questions and share insights on how Belgian courts use the Belgian Trade Secrets Act and interpret its rules according to the EU Trade Secrets Directive.1

A similar blog series first came out in 2021.2 Since then, the amount of decisions by Belgian courts has nearly doubled. Indeed, virtually every single aspect of the EU Trade Secrets Directive has by now been litigated in Belgian courts.

Furthermore, in 2023, a pan-European study conducted by the European Union Intellectual Property Office (EUIPO) showed Belgium as one of the most 'trade secret-friendly' jurisdictions in the EU.3 But does that hold true in practice? This blog post series aims to explore that question.

First trend – parties involved: the usual suspects

The first trend is not new: most trade secret misappropriation cases usually involve former employees and self-employed contractors. This trend has remained consistent over the years.

  • Former employees and self-employed contractors:4 these individuals often had access to sensitive information during their tenure and may use this information in their new roles or businesses. In many cases, the new employer or the company established by the ex-employee is also at fault.5
  • Companies: many cases also involve other companies, either competitors or partners to a cooperation agreement6, joint venture7, or acquisition negotiations8. This happens because confidential information is often shared during business negotiations or collaborations and the temptation to inappropriately use it may prove to be irresistible.

Second trend – proceedings used to enforce trade secrets

The Belgian Trade Secrets Act provides several procedural options to enforce trade secrets protection, namely:

  • the imposition of a protection order and/or a provisional measures;
  • proceedings on the merits;
  • accelerated proceedings on the merits, in which the judge can order the same measures as on the merits (except damages) to stop the infringement or its consequences;
  • summary proceedings.

In recent case law, cease-and-desist orders (be it in summary proceedings or in accelerated proceedings on the merits) dominate, constituting about two-thirds of the judgments. These proceedings are favored because they can quickly and effectively stop the misuse of trade secrets. Indeed, time is of the essence. In some cases, summary proceedings can also be brought ex parte, in order to blindsight the defendant.

Third trend: the enterprise court is the forum of choice for most trade secret cases

Subject matter jurisdiction lies mostly with the enterprise court. In particular, the presiding judge of the enterprise court has jurisdiction over trade secret disputes.

In principle, the enterprise court handles trade secret disputes between businesses.9 However, the enterprise court retains jurisdiction even when the parties involved are not businesses. This was proven in several cases where defendants claimed that they were not corporations and that therefore the enterprise court was materially incompetent.10 However, each enterprise court dismissed this plea as unfounded, emphasizing their exclusive jurisdiction over trade secret disputes.

As an exception to the above, cases involving employees must be heard by the labor court, which may have exclusive jurisdiction.11

Geographically speaking, no strict rules apply. But a noticeable trend is that most cases are heard in Dutch-speaking courts in Brussels, Antwerp, and Ghent, with only a few exceptions. This concentration suggests a regional preference or expertise in handling trade secret cases in these areas.

Conclusion

The enforcement of trade secrets in Belgium has evolved significantly since the introduction of the Trade Secrets Act. Former employees and independent contractors remain the primary parties involved in misuse cases. Summary proceedings are the preferred method for addressing urgent cases, and the Dutch-speaking enterprise courts in Brussels, Ghent and Antwerp typically have jurisdiction over these disputes.12 Understanding these trends can help businesses better navigate the complexities of trade secret protection and enforcement in Belgium.

Stay tuned for our next blog post in the trade secrets series, where we will delve into the requirements to enjoy trade secret protection under the Trade Secrets Act. Don't miss out on this next post that could help you fortify your trade secret strategy and stay ahead of your competitors!

Footnotes

1. Act of July 30, 2018 on the protection of trade secrets, which is a transposition of Directive 2016/943 of June 8, 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure.

2. J.-D. Lindemans, M. Mariano, "Belgische rechtspraak inzake bedrijfsgeheimen: 10 vragen (en antwoorden) na 1.000 dagen nieuwe wet", ICIP 2020/3, p. 599-616.

3. EUIPO, "Trade secret litigation trends in the EU"- IPR enforcement case law collection, 2023, published online (https://euipo.europa.eu/tunnel-web/secure/webdav/guest/document_library/observatory/documents/reports/2023_Trade_Secrets_Litigation_Trends_in_the_EU/2023_Trade_Secrets_Litigation_Trends_Study_FullR_en.pdf), last accessed 1 October 2024.

4. President Enterprise Court Ghent (section Ghent) 5 februari 2020, A/19/01687, unpub.

5. Court of Appeal Ghent 28 June 2021, Jaarboek Marktpraktijken 2021, 155; President Enterprise Court Brussels (Dutch-speaking) 5 November 2020, Netcon bv v. Digital Stewards vof, Jaarboek Markpraktijken 2020, 1, 624; Enterprise Court Ghent (section Ghent) 29 March 2019, A/19/00754, unpub.; President Enterprise Court Ghent (section Ghent) 13 March 2019, A/19/00515, unpub.; President Enterprise Court Ghent (section Ghent) 12 September 2018, A/18/01945, unpub.; Court of Appeal Antwerp 26 mei 2021, IRDI 2021/3, p. 219.

6. Enterprise Court Antwerp, 29 June 2023, May Courier International BV t. Atlas Imobiliare SRL, unpub.

7. Court of Appeal Brussels 11 March 2021, 2020/AR/1367, unpub.

8. Enterprise Court Brussels (Dutch-Speaking), 20 November 2023, A/19/04686, unpub.

9. Article XVII.21/1 Belgian Economic Code; Article XI.342/1 Belgian Economic Code.

10. President Enterprise Court Ghent (section Ghent) 21 December 2022, AR A/21/00341, unpub., 7, Court of Appeal Ghent, 28 June 2021, Jaarboek Marktpraktijken 2021, 155.

11. Article 578, 1° Belgian Judicial Code; Labor Court, 26 December 2022, 2022/KB/26, unpub.

12. See for example: Court of Appeal Ghent 28 June 2021, Jaarboek Marktpraktijken 2021, 155; President Enterprise Court Brussels (Dutch-speaking) 5 November 2020, Netcon bv v. Digital Stewards vof, Jaarboek Markpraktijken 2020, 1, 624; Enterprise Court Ghent (section Ghent) 29 March 2019, A/19/00754, unpub.; President Enterprise Court Ghent (section Ghent) 13 March 2019, A/19/00515, unpub.; President Enterprise Court Ghent (section Ghent) 12 September 2018, A/18/01945, unpub.; Court of Appeal Antwerpen 26 mei 2021, IRDI 2021/3, p. 219.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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