Dutch law protects a trade secret automatically, without any contract, once three conditions are met: the information is secret, it has commercial value because it is secret, and you have taken reasonable steps to keep it that way. Most disputes turn on that third condition: information that circulates freely inside a business, without access control or a confidentiality clause, is not protected however valuable it is.
This protection follows from the Trade Secrets Protection Act (Wet bescherming bedrijfsgeheimen, Wbb) of 2018, which implemented EU Directive 2016/943. Article 1 of the Act contains the definition. Unlike a patent, a trade secret is not registered anywhere; it exists only for as long as it stays secret and is guarded as such.
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What counts as a trade secret?
Recipes and formulations, manufacturing processes, source code, algorithms, customer and supplier lists with pricing terms, margin data and unpublished research results can all qualify under Article 1 Wbb. An employee’s general knowledge, skill and experience does not: the law does not let an employer lock up what someone has learned simply by doing the job.
What is prohibited?
Under Article 2 Wbb, acquiring a trade secret without the holder’s consent through unauthorised access or copying, or by other conduct contrary to honest commercial practices, is unlawful. So is using or disclosing it in breach of a confidentiality obligation. Liability also extends to a party who knew, or ought to have known, that the information reached it through such conduct, which is how a competitor that recruits a whole team can end up liable alongside the individuals involved.
Article 3 Wbb permits independent discovery and, in principle, reverse engineering of a lawfully obtained product, unless reverse engineering has been validly excluded by contract. Article 4 protects disclosure to reveal misconduct or illegal activity in the public interest, for example by a whistleblower.
What remedies are available?
In proceedings on the merits, the court can prohibit further use and disclosure and order the recall or destruction of infringing goods (Article 6 Wbb). Under Article 8 Wbb, damages cover the actual loss, including lost profit and the unlawful gains of the infringer, or a lump sum based on a notional licence fee.
Interim relief is available under Article 5 Wbb, and speed matters more here than almost anywhere else: once information is public, no court order can make it secret again. The court can also designate information as confidential under Article 1019ib of the Dutch Code of Civil Procedure (Rv) and restrict access to documents and hearings, so that litigating does not itself destroy the secret.
How do you protect a trade secret in practice?
Because legal protection depends on the measures you took, those measures are your strategy. Keep a register of categories of secret information instead of a blanket claim that everything is confidential. Restrict access on a need-to-know basis and log who has it.
Use confidentiality clauses with employees, contractors and counterparties, reinforced by a penalty clause, because proving the loss caused by a disclosure is otherwise very difficult. When someone leaves, retrieve devices, disable accounts and remind the departing employee of their obligations in writing.
How does a trade secret differ from a non-compete clause?
A confidentiality clause protects information and can last indefinitely. A non-competition clause restricts where someone may work afterwards and must meet strict requirements under Article 7:653 of the Dutch Civil Code (BW), including a written statement of compelling business interests in a fixed-term contract. Relying on a non-compete alone usually fails on both fronts: it is easier to challenge in court, and it does not stop the information from being used.
An example to illustrate: a sales manager leaves for a competitor and takes a spreadsheet of customer margins and renewal dates. Because access to that spreadsheet was restricted and the contract contained a confidentiality clause with a penalty, the employer could seek an injunction under Article 5 Wbb and damages. Without those measures in place beforehand, the same facts would likely have led nowhere.
What should you check as the owner of the information?
- Which information you treat as secret, and whether that is written down in a register.
- Who has access to it, and whether access is restricted and logged.
- Whether employment and supplier contracts contain a confidentiality clause with a penalty.
- Whether your exit procedure includes returning devices and closing accounts on the last working day.
- Whether you can preserve evidence quickly if you suspect a leak.
What should you check as an employee or new employer?
- Which confidentiality and non-compete clauses your (former) contract contains.
- Whether you still hold files, devices or account access from the previous employer.
- Whether the knowledge you use is general know-how or specific protected information.
- As a hiring company, whether new staff have confirmed in writing that they bring no confidential data of a former employer.
What can we do for you with trade secrets?
Through our corporate lawyer practice we can help you, for example:
- We draft confidentiality and penalty clauses for employment, supplier and NDA contracts.
- We review your access and exit procedures against the “reasonable steps” requirement.
- We send a cease-and-desist letter to a former employee or competitor.
- We apply for interim relief under Article 5 Wbb and ask for confidentiality of the proceedings.
- We assess a claim made against you or your new employee.
Summary
- A trade secret is protected automatically once it is secret, has commercial value because it is secret, and is guarded by reasonable measures (Article 1 Wbb).
- General know-how an employee picks up on the job is never a trade secret.
- Remedies include an injunction, recall or destruction of goods and damages, which can include the infringer’s unlawful gains (Articles 6 and 8 Wbb).
- Protection depends on the measures you can show you took: access control, confidentiality clauses and a clear exit procedure.
- Act quickly: once a secret becomes public, no court order can make it secret again.
Frequently asked questions
Do I need to register a trade secret to be protected?
No. Unlike a patent or trademark, a trade secret requires no registration. Protection exists automatically once the three conditions of Article 1 Wbb are met, and it ends the moment the information is no longer secret.
Can a former employee use knowledge from their old job?
Yes, for their general knowledge, skill and experience. They may not take or use specific confidential information, such as customer data, pricing models or source code, that their former employer properly protected.
What should I do first if I suspect a trade secret has been leaked?
Secure evidence of what was taken and how, and move quickly: interim relief under Article 5 Wbb is only effective before the information spreads further.
