The Dutch Trade Secrets Protection Act (Wbb) has provided legal safeguards since 2018 against unlawful acquisition, use or disclosure of confidential know-how and business information. A trade secret arises automatically when information remains confidential, possesses commercial value and the holder implements reasonable protective measures to maintain secrecy.
Trade secret protection forms an essential component of Dutch commercial law. Unlike patents, you need not file registration applications – protection emerges automatically once three statutory conditions are fulfilled. This makes the Wbb particularly relevant for entrepreneurs seeking to preserve competitive advantage without mandatory publication of sensitive information.
What Qualifies as a Trade Secret Under Dutch Law?
Trade secrets encompass technical knowledge, commercial data, work processes, customer databases, strategies, formulas and research findings that are not generally known and possess commercial value through their confidential character.
Within 50 words, Article 1:1 of the Trade Secrets Protection Act establishes the legal framework for qualifying information, building on European Directive 2016/943/EU implemented in Netherlands legislation.
The scope of protected information extends broadly. Product recipes, software code, market strategies, contract terms and concepts can all receive trade secret protection. Consequently, this legislation benefits SME enterprises, startups and service organizations that depend heavily on specific know-how.
However, everyday information or general experience that employees acquire during their work falls outside the definition of trade secrets. Moreover, the information must demonstrate clear distinctive character compared to publicly available knowledge in your sector.
Three Cumulative Conditions for Legal Protection in the Netherlands
The Dutch Civil Code establishes three strict requirements that information must satisfy for protection under the Wbb. All conditions must be fulfilled simultaneously – absence of one element means no legal protection can be claimed.
First condition: confidentiality of information
The information must not be generally known or readily accessible to persons who professionally deal with such information. This means competitors, industry peers or other experts cannot obtain the information without effort. Publications in professional literature, public databases or generally available sources automatically disqualify information from protection.
Second condition: demonstrable commercial value
The confidential information must possess commercial value precisely because it remains secret. Consider recipes where disclosure would lead to market position loss, or customer data where publication would damage competitive standing. Both actual and potential commercial value count – future commercial exploitation suffices.
Third condition: adequate security measures
As holder you must implement reasonable, proper and acceptable measures to ensure confidentiality. The legislator applies a practical standard: measures must be appropriate given your specific circumstances. A multinational corporation must implement stricter security than a sole proprietorship.
Which Security Measures Are Legally Sufficient Under Dutch Law?
Reasonable measures include confidentiality clauses in employment contracts and commercial agreements, physical security such as locked archives, digital protection via encryption and access control, plus organizational procedures whereby only essential personnel gain access to sensitive information.
Article 2:1 Wbb specifies that protective measures must be “reasonable under the circumstances,” assessed based on company size, information sensitivity and industry standards in Dutch business practice.
Practical implementation requires a combination of legal, physical and digital measures. Contractual arrangements alone prove insufficient – factual security is also necessary. For example, a confidentiality clause without password protection on relevant files provides inadequate protection.
Contractual Protection Measures in the Netherlands
Non-disclosure agreements (NDAs) form the legal foundation for protection when collaborating with external parties. These confidentiality agreements specify which information remains confidential, how long confidentiality applies and which sanctions connect to breaches. Conclude an NDA before sharing business-sensitive information during negotiations or collaborative ventures.
In employment contracts and workplace regulations you must include explicit confidentiality provisions. This applies both to new contracts and ongoing employment relationships. Non-compete clauses and relationship restrictions strengthen protection additionally, though these must satisfy strict legal requirements to remain legally valid.
Physical and Organizational Security
Limit accessibility of business premises through surveillance, access control and registration systems for visitors. Store sensitive documents in locked archives or safes of which only authorized personnel possess keys. Additionally, it proves wise to establish work protocols describing how employees must handle confidential information.
Organizational measures mean only key figures gain access to trade secrets. Implement a ‘need-to-know’ principle: employees receive insight only into information necessary for their function. Register which employees have access to specific secrets and offer training about the importance of confidentiality.
Digital Security Techniques
Modern business operations require robust digital security. Encryption of files and email communication protects against unauthorized access. Two-factor authentication prevents hackers from accessing accounts even when passwords are compromised. A sound access control system regulates which users may view or edit which files.
The i-DEPOT of the Benelux Office for Intellectual Property (BOIP) offers supplementary security options. This digital vault records the existence of your trade secret on a specific date, which can be relevant in disputes about who first possessed certain know-how. Although registration is not mandatory for protection, an i-DEPOT strengthens your evidentiary position.
When Does Unlawful Acquisition of Trade Secrets Occur Under Dutch Law?
Unlawful acquisition encompasses unauthorized access to documents or systems, appropriation or copying without permission, economic espionage and breach of confidentiality obligations from employment contracts or NDAs.
Article 3:1 Wbb defines specific actions as unlawful, providing clarity where previously only general liability for unlawful acts was available in Dutch civil proceedings.
The Wbb designates specific actions as unlawful. This provides clarity where previously only appeal to general liability from unlawful acts was possible. Actions that previously resided in a legal grey area are now explicitly prohibited.
Direct and Indirect Unlawful Use
Direct unlawful use arises when someone applies a trade secret while knowing or should have known it was unlawfully obtained. For example, an employee who takes confidential customer data to a competitor acts unlawfully. Producing goods with stolen production processes also falls under this category.
Indirect use likewise leads to liability. A manufacturer who markets an end product incorporating a semi-finished product becomes liable when he knew or should have known this semi-finished product was manufactured using unlawfully obtained trade secrets. This rule prevents infringers from escaping liability by using intermediaries.
Contract Breach as Unlawful Action in Dutch Jurisdiction
Acting contrary to confidentiality agreements or employment contract provisions is explicitly unlawful under the Wbb. This also applies to breach of other obligations to restrict use (restricted use clauses). Therefore, contract breach forms an independent ground for legal action, separate from whether unlawful acts also occurred.
Employees who gain access to trade secrets during employment remain bound by confidentiality even after termination of employment. Former employees may use their acquired knowledge for new work, but not specific trade secrets from their previous employer.
How Do You Address Trade Secret Infringement Legally in the Netherlands?
The District Court can issue an injunction prohibiting use or disclosure upon your claim, stop production of infringing goods, impose attachment, order product recall or destruction, award damages and order publication of the judgment.
Articles 3:5 through 3:8 Wbb provide comprehensive legal remedies through Dutch civil courts, with procedures initiated at the District Court in the jurisdiction where the infringer is established or where infringement occurs.
Dutch entrepreneurs possess effective legal remedies for trade secret infringement. The Wbb offers extensive instruments to enforce your rights through civil courts. Procedures can be initiated at the District Court in the jurisdiction where the infringer is established or where infringement occurs.
Preliminary Injunctions and Penalty Payments
In urgent situations you can initiate summary proceedings before the preliminary relief judge. This judge can issue a provisional prohibition within several weeks on further use or disclosure of your trade secrets. A penalty payment is usually attached to this prohibition: a sum the infringer must pay for each violation or each day he fails to comply with the court order.
Penalty payments have preventive effect. Amounts from €5,000 to €50,000 per violation are common, with a maximum sum of for example €250,000. The judge determines the amount based on the severity of infringement and the infringer’s financial capacity.
Attachment and Evidential Attachment on Infringing Products
Through attachment, infringing products can be blocked. This prevents further distribution and sale while substantive proceedings continue. Evidential attachment offers the possibility to secure documents, administration or production facilities relevant to proving infringement.
The bailiff imposes attachment under court supervision. This means products remain with the infringer but may not be sold or relocated. In serious cases the judge can order delivery: the infringing products must then actually be transferred to you.
Recall Actions and Destruction Under Dutch Law
When infringing products have already entered commercial circulation, you can claim recall. The infringer must then actively recall these products from distributors and end users. This measure is especially applied when continued use causes serious damage to your market position.
Destruction of infringing products forms the most far-reaching measure. The judge can order that products, documentation and even production facilities specifically used for infringement be destroyed. This occurs at the infringer’s expense and under bailiff supervision.
Damages for Deliberate Infringement
Basic damages correspond to the royalty amount that would have been due had the infringer requested permission to use your trade secret. These damages apply for the period during which use occurred or could have been prohibited.
Additional damages are possible when the infringer knew or should have known he acted unlawfully. This claim covers all suffered losses: revenue loss, reputation damage, legal procedure investments and other demonstrable losses. In practice, damage amounts can reach hundreds of thousands of euros, depending on the trade secret’s commercial value and infringement duration.
What Protection Does the Court Provide During Proceedings in Dutch Law?
The court can designate trade secrets as confidential upon request and determine that only specific persons – such as lawyers and one natural person per party – gain access to sensitive procedural documents, preventing trade secrets from becoming public during litigation.
Article 1019ib of the Dutch Code of Civil Procedure grants judges authority to order confidential treatment, addressing the fundamental problem of proving infringement without destroying secrecy through disclosure.
A fundamental problem in trade secret disputes is that you must prove which information is secret and how infringement occurred. This requires disclosure in proceedings, while precisely that disclosure destroys the trade secret. The legislator has recognized this problem and created procedural safeguards.
Limited Access to Confidential Procedural Documents
Article 1019ib Code of Civil Procedure grants the judge authority to order confidential treatment. All procedure participants – parties, lawyers, witnesses and experts – may not use or disclose information the judge has designated as confidential. Violation can lead to conviction for contempt of court.
Additionally, the judge can explicitly determine who may take note of trade secrets. At minimum one natural person per party and the lawyers receive access, but the judge can restrict this to only lawyers when trade secret protection requires it. This restriction is controversial because litigants may lack access to all relevant information.
Article 22a Rv: Maximum Confidentiality
In proceedings not specifically concerning trade secrets but where trade secrets arise, Article 22a Code of Civil Procedure offers extensive protection. The judge can determine that access to certain documents is reserved for lawyers or representatives with special court permission.
This means even the litigant himself gains no access to documents containing trade secrets. The lawyer may not share this information with his client. This provision raises questions about the right to fair proceedings and the trust principle between lawyer and client, but was introduced to offer the highest degree of protection.
Closed Treatment of Sensitive Cases
Besides access limitation, the judge can decide on treatment of (parts of) the case behind closed doors. Public and press are then excluded from the courtroom. Judgments are published anonymized, with company names and specific details omitted that could lead to identification.
These measures lower the threshold for companies to take legal action. Without this protection, trade secret holders would hesitate to initiate proceedings from fear their secrets would become public.
What Is the Difference with Patent Protection in the Netherlands?
Patent protection requires registration and complete publication of the invention, offers a temporary monopoly of maximum 20 years and is only possible for technical inventions, while trade secrets remain protected indefinitely as long as they stay secret and require no registration.
The Dutch Patent Act (Rijksoctrooiwet) establishes patent rights through Octrooicentrum Nederland, contrasting with the Wbb’s automatic protection without registration requirements or time limitations.
Entrepreneurs regularly face the strategic choice between patenting and maintaining secrecy. Both protection forms have specific advantages and disadvantages requiring careful consideration.
When to Choose a Patent?
Patents suit technical inventions that are new, inventive and industrially applicable. Registration with Octrooicentrum Nederland creates an exclusive right: only you may produce, sell and apply the invention. Others who use your patented invention without permission infringe regardless of whether they obtained the trade secret lawfully.
However, patent applications are published. Competitors can study your technology and possibly develop alternative solutions falling just outside the scope of protection. Moreover, patent protection expires after 20 years, after which everyone is free to use your invention.
Advantages of Confidentiality Over Patenting
Trade secrets know no time limit. As long as information remains secret, protection continues. Coca-Cola’s recipe has been successfully kept secret for over 100 years – much longer than any patent would last. This makes confidentiality attractive for formulas, recipes and processes that are durably commercially valuable.
Additionally, not all valuable business information is patentable. Customer databases, market strategies, pricing models and other commercial know-how fall outside patent law scope but can be protected as trade secrets. Costs for registration and enforcement of patents are considerably higher than measures for maintaining confidentiality.
Hybrid Protection Strategies
In some cases a combination proves optimal. You can patent certain components of your innovation while other aspects remain secret. For example, you patent a basic invention but keep specific production processes and parameters secret. This maximizes protection and complicates competitors’ ability to completely copy your product.
Do you have questions about the optimal protection strategy for your trade secrets? Specialized lawyers in Amsterdam analyze your specific situation and advise on contractual, organizational and legal measures to protect your competitive position.
Practice Example: Infringement of Production Process
A Dutch producer of industrial paints developed a unique mixing system operating 30% faster than traditional methods. The company decided not to patent this process but keep it secret. Employees signed strict confidentiality declarations and only three senior technicians had access to the complete process description.
A competitor suddenly brought a comparable product to market with remarkably fast production time. Investigation revealed that a former employee who had left six months earlier had joined this competitor. This employee had copied process descriptions and taken them on a USB stick.
The paint producer initiated summary proceedings based on the Wbb. The preliminary relief judge established that all three conditions for protection were satisfied: the process was not generally known, had demonstrable commercial value because it yielded efficiency gains, and the company had implemented adequate measures through contracts and access restrictions. The judge prohibited the competitor from further use of the process under penalty of €25,000 per violation, with a maximum of €500,000.
In substantive proceedings the paint producer claimed damages. The District Court calculated damages based on lost revenue and determined the infringer knew he acted unlawfully. Total damages amounted to €185,000, plus procedural costs of €35,000. The former employee was held personally liable for violating his confidentiality declaration.
European Harmonization of Trade Secret Protection
The Dutch Wbb implements Directive 2016/943/EU of the European Parliament. Therefore, comparable rules apply in all EU member states for trade secret protection. This harmonization provides legal certainty in cross-border trade and cooperation within the European Union.
Minimum Standard Throughout the Union
All member states had to implement the directive by 9 June 2018 at the latest. This creates a minimum level of protection entrepreneurs can rely on, regardless of which EU country they operate in. Definitions of trade secrets, unlawful actions and available legal remedies are largely uniform.
For Dutch companies operating internationally, this means they can invoke comparable protection in other EU countries. Conversely, foreign companies can claim the same rights in the Netherlands as Dutch enterprises.
Cross-Border Enforcement in the Netherlands
When trade secret infringement occurs in multiple EU countries, harmonized legislation offers possibilities for efficient enforcement. You can initiate proceedings in the country where the infringer is established or where infringement occurs. Obtained judgments are more easily enforceable in other member states through comparable legal frameworks.
Effectively Protecting Your Trade Secrets: Action Points
Adequate trade secret protection requires proactive action. Do not wait until infringement has occurred – prevention is more effective and cheaper than litigating afterwards. Implement the following measures to strengthen your legal position:
Inventory which information in your organization qualifies as trade secrets. Create an overview of know-how, processes, formulas and data that have commercial value through their confidential character. This inventory forms the foundation for targeted protective measures.
Establish confidentiality agreements for all relevant relationships. This concerns not only employees but also business partners, suppliers, advisors and anyone gaining access to sensitive information. Have these contracts drafted or reviewed by specialized lawyers to ensure legal validity.
Implement physical and digital security appropriate to the value of your trade secrets. Larger companies with high-grade know-how must invest more than small enterprises with limited secrets. Ensure measures are documentable – in disputes you must demonstrate that you made reasonable efforts.
Train your personnel regularly about the importance of confidentiality and practical application of security protocols. Awareness prevents employees from accidentally sharing confidential information. Clarify which sanctions connect to confidentiality breaches.
Consider using an i-DEPOT at BOIP for important trade secrets. Although registration is not mandatory, this timestamp strengthens your evidentiary position when disputes arise about who first possessed certain know-how.
Contact specialized lawyers in Amsterdam for legal advice on protecting your trade secrets, drafting watertight confidentiality agreements and enforcement upon infringement. Effective protection begins with professional legal support tailored to your specific situation.
