Who is obligated to obey the trade secret?

The group of entities which are able to commit an act of unfair competition within the meaning of Polish Act on combating unfair competition of 16 April 1993 (Act) is wide. The Act is being applied to “entrepreneurs”, i.e. natural persons, legal persons and organisational units with no legal personality which take part in business activity, while conducting, even if collaterally, employment or professional activity.

While assessing whether particular person is liable for an act of unfair competition, it is necessary to consider the type of the act and circumstances of the particular situation.

It may be difficult to determine persons who are obligated to keep trade secret confidential and who can be potential violators.

In the judgment of 11 October 2018, ref. no. I CSK 491/18, the Supreme Court stated that art. 11 sec. 1 of the Act concerns not only workers and trade partners whose obligation to keep confidential information constituting trade secret results from the contract but also persons who accidentally came into possession of such information.

The Supreme Court underlined that to the group of entities which are obligated not to use information constituting trade secret, belong not only persons who expressly (also on the basis of the contract) or through particular activities were required to keep information confidential, but also persons who, however, were not directly obligated by a trader to keep it in secret but are aware that information obtained in any way constitutes trade secret.

The Supreme Court presents the above-mentioned position with reference to Art. 11 sec. 2 of the Act which includes the definition of trade secret. This is technical, technological and organisational information of the enterprise, i.e. information presenting economic value. Therefore the group of entities obligated not to use information that is trade secret is formed on the basis of the type of information held by particular persons.

Therefore, any entity which obtained information that is trade secret can be considered as a person obligated to keep confidential information in secret. However, it does not matter how a particular person obtained confidential information.

The Supreme Court stated clearly that the circumstance that the parties were not bound by a contract which could directly obligate them to keep confidential information that is trade secret  did not prejudge the possibility of commitment of an act of unfair competition.

• Judgment of the Supreme Court of 11 October 2018, ref. no. I CSK 491/18