THE HARMONISATION OF TRADE SECRETS PROTECTION IN THE EUROPEAN UNION AND DEVELOPING OF LEGISLATION OF UKRAINE

Abstract

Target of research. The purpose of the article is to study the peculiarities of Proposal for a Directive of the
European Parliament and of the Council on the protection of undisclosed know-how and business information (trade
secrets) against their unlawful acquisition, use and disclosure and to evaluate the possible impact of its adoption on
legislation of Ukraine.
Analysis of resent researches and publications. The issues of trade secrets and know-how protection in the
EU were studied under Reports on trade secrets for the European Commission (MARKT / 2010/20 / D, MARKT /
2011/128 / D), by Tanya Aplin, Tore Lunde, as well as in Ukraine – by Kapitsa Y., Androschuk G., Kraynev P.,
Begova T., Mironenko N., Nosik Y., Podolyako A., Yusupova D. and other specialists.
Article’s main body. EU 2013 Proposal on the harmonization of the laws of the Member States on the protection
of trade secrets indicates a new, unusual for other IP directives accent in harmonization with main emphasis on the
approximation of enforcement provisions.
Also the position of the legislator was not to define trade secrets as intellectual property fearing that it could
lead to over-protection and that is harmful to competition. The draft Directive went far beyond the provisions of the
TRIPS Agreement and contains detailed provisions on the measures, procedures and remedies; unlawful acquisition,
use and disclosure of trade secrets, conditions of application and safeguards, preservation of confidentiality of trade
secrets in the course of legal proceedings, damages etc.
At the same time a large number of provisions of the TS Directive are a repetition and development of Directive
2004/48/EC on the enforcement of intellectual property rights, due to the attempt to build special legislation for
trade secrets. Withal a number of new provisions of TS Directive are actual for intellectual property enforcement.
In view of the different provisions of TS Directive and Directive 2004/48/EC courts in the EU may be faced
with different features of enforcement as to trade secrets and intellectual property rights. It seems that the concentration
of efforts on the improvement of Directive 2004/48/EC, at the same time making references in TS Directive on the
application for the trade secrets provisions of the Directive 2004/48/EC and reflection in TS Directive only the
specifics – promoted the legal certainty and adequate consideration of legal cases.
Conclusions and prospects for the development. Ukraine has a developed legislation on trade secrets
protection. At the same time the analysis of the Proposal demonstrates the relevance of incorporation of it’s certain
provisions to legislation of Ukraine. This includes: identification of cases of lawful acquisition of trade secrets, the
use or disclosure of a trade secret by third parties; the authority of the court to to require the applicant to provide
evidence in interim and precautionary measures; the pecularities of pecuniary compensation to be paid for the person
acting in good faith. Also it important to take into consideration the suggestions to Proposal by the European
Parliaments’ committees and the Council as to the cases of disclosure of trade secrets in public interest.