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Trades Secrets Protection under the Romanian Law :

June 2008 - Intellectual Property. Legal Developments by STOICA & Asociatii Attorneys at Law.

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Following the implementation in the domestic law of the Trade related Aspects of Intellectual Property Treaty, the Romanian Unfair Competition Law defines the trade secret as an information which is not generally known or is not easily accessible to the people usually dealing with this kind of information, which derives economic value from the fact of being secret and for which the legitimate holder took the reasonable steps to keep it secret. Anything may be a secret of economic value: a process, an error to avoid, an invention, an idea, a discovery, a prognosis, a list of clients or suppliers, a strategy, the source-code of a software, a formula, a fact.

Unlike the US federal states law, under the Romanian law the trade secret is not a property. It is not protected by direct subjective rights. Because it is not a property, the trade-secret cannot be sold, assigned, leased, licensed or secured, it cannot enter as such in an inheritance or in the estate submitted to the insolvency procedure.

However, the means purported to keep the secret of a confidential information may be protected by such rights. The direct protection of the means purported to keep the information secret means indirect protection of this secret. For example, steeling a secret document infringes the ownership over the document. Breaching an obligation of confidentiality inflicted to a determined debtor infringes the secret of the information making the object of such obligation.

The fact of the trade secret not being property do not involve the invalidity of the obligations to communicate or to not use or not disclose a secret information. The contracts providing for such obligations allow the transmission of the information, but not as property but as fulfillment of obligations to perform or to not perform certain acts of communication or use of the trade - secret.

Generally any unfair mean to achieve, use or disclose the information is a fault under the Romanian tort law. Such fault determines the duty of the author to compensate the damage inflicted to the holder of the secret making the object of the unfair act. In case the damage was caused by the fault of a competitor on the same market, the specific liability applying is the one for unfair competition. Therefore, the main law providing for the trade secret protection is the law for fighting unfair competition.

A duty to not disclose a secret information may arise out of the circumstances in which the respective obligation was acknowledged by the subject of this duty. If the circumstances were of such a nature that the holder of the information know or should know that the disclosure or use of that information may cause a damage to a third party he should refrain himself from the acts determining such damage, irrespective if his entering into the possession of the information was willful or only accidental. Of course, in those cases he will be allowed to disclose or use the information if such conduct would serve its legitimate interest and would not be unfair towards the holder of the trade secret.

The obligation of confidentiality may derive from a contract and may be even implied  in case that, under the circumstances of its conclusion, the party had to know that the information that she was to receive under the express terms of the contract is confidential and keeping it confidential was not in conflict with the interest for which that party entered into the contract and which was known to the other party

Those lines are a slide suggestion of the complexity of the legal protection of trade secrets under the Romanian law. Anyway, those nuances have the merit ob being able to adapt to very different factual necessities and therefore they offer to the tradesman and his legal counsel flexible and varied solutions in each factual situation. Further on, it's for them to choose.

RńÉzvan DincńÉ PhD


Head of Intellectual Property Group

STOICA & AsociaŇ£ii