Shhh….Keeping the Secret Secret and Trade Secret Litigation

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“Whatever you do, don’t tell anyone”

(Queens of the Stone Age – The Lost Art of Keeping a Secret)

I doubt Josh Homme was thinking about trade secrets when he wrote the above lyrics, but there’s some valuable “legal advice” hidden in those lines. Namely, as often pointed out, once a trade secret is out, it may be lost forever.

Indeed, the secret maybe lost but not necessarily given away for free. Trade secret legislation is designed particularly for these unfortunate situations. Once the secret is out, you may not be able to get it back in the bottle again. But you may be able to stop further spreading of the secret and at least get some damages from the perpetrator. This will usually mean you will have to go to court for enforcement. And this is where it may get a bit tricky: Alas, in order for the enforcement to be successful you will probably have to disclose your secret. That doesn’t sound very tempting if your trade secret is valuable, does it? Continue reading “Shhh….Keeping the Secret Secret and Trade Secret Litigation”

The GS Media decision and ‘communication to the public’?

The CJEU quite recently handed down its decision in the GS Media case (C-160/15, available here). In said case, the CJEU revisits the notion of ‘communication to the public’ of the InfoSoc directive. The case concerns a situation where the material has originally been placed on the internet without the consent of the copyright owner. If the content has been made freely available on another website with the consent of a copyright holder, there would usually be no ‘communication to the public’ (see e.g., the Svensson decision, C-466/12 available here).

In GS Media, the CJEU distinguished between i. non-commercial use and ii. use for profit. If the hyperlink is placed on a website that operates for profit, the person who posts the hyperlink has a duty to check if the content was originally placed on the web without the consent of the copyright owner. Further, if the website operates for profit, it is presumed that the posting is made with full knowledge of the protected nature of the relevant work and the potential lack of consent of the copyright owner. This presumption can however be rebutted.

Continue reading “The GS Media decision and ‘communication to the public’?”

The difficult marriage of IP & competition law

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The relationship between IP and competition law has certainly not been a bed of roses. Initially, the two regimes were regarded as separate (inherency theory). One could argue that the primary goal of IP is to promote innovation, while the primary goal of competition law is to promote competition. This is of course a somewhat simplified picture of the two regimes, since also other important objectives could be stressed, but this simplification helps to underscore that a certain tension between the regimes could be observed. Given the potential of conflict between objectives, it was argued that competition law only should play a role in situations where the IP holder goes beyond the exclusive right. Continue reading “The difficult marriage of IP & competition law”