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More protection in Italy for know-how

The European Directive that widens the range of action and exacerbates penalties has been adopted 6 July 2018

Italy protects know-how and reserved commercial information more than ever. The Legislative Decree 63/2018, enacted in implementation of the European Directive 2016/943 against the illegal acquisition, use and disclosure of company information and technical-industrial experience, came into force on 22 June 2018.

The Decree brings substantial changes with a view to giving greater value to the concept of “confidentiality”. This is specified as a fundamental element of commercial competitiveness and innovation management for companies: information such as technological knowledge, commercial data (for example, data relating to clients and suppliers, prices, etc.), business plans and market strategies represent a crucial asset.

The Directive – which led to an updating of Articles 98 and 99 of the Italian Industrial Property Code – has introduced the notion of “trade secret”, instead of the expression “confidential company information” without modifying its definition, expanding the possibility of its application and specifying the regulation to consider it protected by confidentiality.

For those matters regulated by civil law, it is provided that the owner of a trade secret can prosecute not only those who use it unlawfully in an informed manner, but also those who use it unwittingly. The only difference is that for the uninformed user, it will be possible to apply only fair compensation if he satisfies the loss suffered by the rightful owner, and if the application of other possible sanctions is excessively burdensome.

Another novelty is that the owner of the “trade secret” can have all the goods produced on the basis of unauthorized use of his secrets removed from the market, provided that the user, according to circumstances, would have been able to perceive the illegal use of said secrets. During the interlocutory stage, the accused user – at the discretion of the Judge – could continue to use the secrets (and therefore the goods) against a security deposit.

The Directive has brought updates in the penal field as well. In fact now art. 623 of the Penal Code specifically includes “trade secrets” in its provisions, thus providing, in the event of a crime, a sentence of up to two years in prison.
Instead, the same modification to art. 388 of the Penal Code should have only a purely interpretative purpose, because jurisprudence already applied this type of offence in the event of non-compliance with the provisions issued to protect industrial property rights.

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