KOSOVO’S LEGISLATION NOW OFFERS PROTECTION FOR TRADE SECRETS

Author: Albin Xhemaili

Businesses, regardless of their size, during their commercial activity invest in the acquisition, development, and application of knowledge and information, which provides them with a competitive advantage over other businesses. Investment in the creation and application of intellectual capital, for businesses, is a determining factor in terms of their performance in the market. Meanwhile, satisfactory market performance enables them to return the investment made and further develop the business.

To acquire innovations and other commercial results from their economic activity, businesses use different Intellectual Property institutes, such as patents, trademarks, or copyrights. Another method that enables the acquisition of the results of business innovation is the protection of access to information that is valuable for the business and that is not widely known. This valuable information, which is undisclosed and intended to remain so, is called a trade secret.

Trade secrets are extremely important to businesses. This is because, through them, businesses are enabled to save valuable information, in such a way that they remain confidential from their competitors in the market. Being confidential, this information enables businesses to have an advantage in the market and therefore, to earn financial benefits.

Being so, trade secrets are always exposed to dishonest business practices, such as theft, unauthorized copying, economic espionage, or other forms of breach of confidentiality. This has led to the need of creating a legal framework, which enables the preservation of trade secrets.

Law No. 08/L-076 on the Protection of Trade Secrets, which entered into force on June 15, 2022, aims to protect trade secrets from illegal acquisition, use, and disclosure.

This law defines a trade secret as information that meets the following requirements:

• it is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally or readily accessible to persons within the circles that normally deal with the kind of information in question;

• it has commercial value because it is secret; and

• it has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.

Whereas the acquisition of trade secrets, according to this law, is always considered illegal when carried out through unauthorized access, which means the acquisition or copying of various documents, objects, or materials, which contain the trade secret and which are legally under the control of the holder of trade secret, as well as any other behavior which according to the circumstances of the case is considered contrary to honest commercial practices. Likewise, the use of a trade secret is also considered unlawful when the person has violated the confidentiality agreement or any other obligation not to disclose the trade secret.

The innovation that this law brings to Kosovo is the enabling of the protection of trade secrets in judicial proceedings. In most of its provisions, the Law defines the procedures, measures, orders, and court decisions, through which it is possible to ascertain or stop the violation of the trade secret, to fine the violator of the trade secret, as well as the adequate compensation for the party damaged by trade secret violation.

To conclude, trade secrets, as an integral part of Intellectual Property, are of great importance, therefore the adoption of a law that offers their protection in Kosovo is good news for businesses operating in the country.

It is important that companies draw up agreements with employees, as well as issue relevant decisions and regulations on this matter, to benefit as soon as possible from the implementation of this law.