Article 2

For the purposes of this Directive, the following definitions apply:

(1) ‘trade secret’ means information which meets all of the following requirements:

(a) it is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;

(b) it has commercial value because it is secret;

(c) it has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret;

(2) ‘trade secret holder’ means any natural or legal person lawfully controlling a trade secret;

(3) ‘infringer’ means any natural or legal person who has unlawfully acquired, used or disclosed a trade secret;

(4) ‘infringing goods’ means goods, the design, characteristics, functioning, production process or marketing of which significantly benefits from trade secrets unlawfully acquired, used or disclosed.

UPC Case Law
 

UPC Court of Appeal

IPPT20260318, UPC CoA, EOFlow v Insulet
Trade secrets or other confidential information ae no longer trade secrets or other confidential information if they are disclosed to the other party without an order pursuant to R. 262A RoP, or without any other restriction, for example an agreement between the parties or a voluntary undertaking. A request under R. 262.2 RoP does not automatically lead to protection against the other party disclosing the information. Only a R. 262A RoP application allows the Court to restrict the use of confidential information by the other party. Once the information has been communicated by serving the briefs without any restriction (….), it is no longer confidential. 

IPPT20250801, UPC CoA, Strabag & Chainzone v Swarco
Restrictions on access to and use of information by a party and its representatives may only be subject to restrictions in accordance with R. 262A RoP. An application under Rule 262.2 RoP does not automatically grant provisional protection against the disclosure of information by the other party. A party's written submissions and evidence are, in principle, made directly accessible to the other party without any restrictions as to its use or recipients, unless a simultaneous request is made under R. 262A.1 RoP when the document is lodged. R. 262.2 RoP relates only to a limitation of access to documents to the public. An applicant who does not request protection of the relevant information at the time of its submission does not take the necessary confidentiality measures. This results in the information losing its character as a trade secret. For this reason a request under R. 262A.3 RoP cannot be granted at a later stage. Trade secret product characteristics are those that are not readily available to third parties but can only be determined after time-consuming analysis (Article 58 UPCA, Article 2 Trade Secrets Directive). Scope of confidentiality obligation (Article 58 UPCA, R. 262A RoP). Confidentiality requests cannot be so broad so as to prevent a party from divulging to third parties information that it obtained through legal means outside of the procedure (such as through its own measurements or tests)