Protection of trade secrets in France under the French Commercial Code

Behind each “Made in France” product is a whole story of creativity and constant innovation. From traditional pastry recipes that have been preserved for generations to bold fashion designs, the French know how to combine tradition and modernity to create unique products. The business secrets hidden in each product, such as special formulas, proprietary production processes, or copyrighted designs, are the “trump card” that helps French businesses assert their position in the international arena. In order to protect these valuable intangible assets of each business, the French legal system has built a solid legal system that includes provisions on unfair competition, protection of intellectual property rights, and civil liability for the disclosure of trade secrets. As a result, French businesses can be assured to invest in research and development, create new products, and meet the increasing needs of global consumers. Viet An Law would like to guide customers through the preliminary procedures for protecting trade secrets in France through the article below.

The concept of trade secrets in France according to the French Commercial Code

According to Article L.151-1 of the French Commercial Code (FCC), any information that meets the following criteria will be protected as a trade secret:

• Such information, either in nature or in its exact configuration and assembly with its components, is not publicly available or easily accessible to people in the fields who regularly work with that type of information;
• Such information has commercial value, actually, or potentially, due to its confidentiality;
• The person who has the legal right to such information has taken reasonable measures in specific circumstances to keep the information confidential.

This clause of French law clearly defines trade secrets. In order for an information to be considered a trade secret and protected by law, it must simultaneously meet the following 3 conditions:

• Uniqueness and security: Information should be new, unpopular, and not easily searchable in the industry.
• Commercial value: The information must bring economic benefits to the business, whether current or potential benefits.
• Protections: Businesses must demonstrate that they have taken the necessary measures to protect that information from disclosure.

Acts allegedly infringing upon the protection of trade secrets under the French Commercial Code

According to Articles L.151-4 to L.151-6 of the French Commercial Code (FCC), infringement of trade secrets includes:

• Unauthorized access to any digital materials, objects, materials, materials or files that contain secrets or can be inferred from, or the unauthorized collection or copying of these elements; any other conduct that is considered unfair and contrary to commercial practice in the particular circumstances.
• Using or disclosing trade secrets when performing without the consent of the lawful owner or when the person performing the act of breaching the obligation fails to disclose the secret or restricts the use of the secret.
• Manufacture, offer or put on the market, as well as import, export or store for those purposes products derived from the infringement of trade secrets, in cases where the person carrying out such activities knew or should have known in the specific circumstances that the secret is being used illegally.
• Knowingly collecting, using, or disclosing a trade secret when at the time of collection, use, or disclosure of such secret, that person knew or should have known in particular circumstances that the secret was collected, directly or indirectly, from another person who unlawfully used or disclosed such secret.

Exceptions

• Disclosure to protect the public interest: In some cases, disclosure of trade secrets may be permitted if it is necessary to protect health, public safety, or the environment.
• Disclosure as required by law: State agencies may request the disclosure of trade secrets during investigations or perform other tasks as prescribed by law.
• Disclosure during litigation: In lawsuits, the disclosure of trade secrets may be required to clarify the truth and protect the interests of the parties involved.
• Disclosure of information that has been publicly available: If the information has been publicly available and is no longer proprietary, the use or disclosure of such information will no longer be considered a violation of trade secrets.
• Use of information to exercise legal rights: In some cases, the use of confidential information may be permitted if the purpose is to exercise a legal right, such as the right to freedom of expression.

Guidelines for the Protection of Trade Secrets in France under the French Commercial Code

According to Article L.151-1 c) of the French Commercial Code (FCC), the holder of a trade secret must take “reasonable measures to keep trade secrets”. French law does not provide any further details about the nature of these measures.

Some measures to protect trade secrets in France

Legal measures

• Intellectual Property Registration: Protect unique creations through the registration of trademarks, copyrights, patents.
• Sign a confidentiality contract: Ask stakeholders (employees, partners, suppliers) to sign a confidentiality contract to ensure that the information is not disclosed.
• Legal proceedings: When there is an act of infringement, the enterprise has the right to initiate a lawsuit to protect its rights.

Technical Measures:

• Access management system: Restrict access to confidential information to authorized people only.
• Data encryption: Protect data with strong encryption algorithms to prevent unauthorized access.
• Early warning systems and software: Detect and prevent cyber attacks.
• Back up your data: Back up your data regularly in case of loss.

Organizational measures:

• Employee training: Organize training courses to raise awareness of the importance of information security.
• Develop a clear working process: Specify in detail the procedures for handling confidential information.
• Regular risk assessment: Identify and mitigate potential risks.
• Security culture: Build a work environment where information security is considered everyone’s responsibility.

Management measures:

• Decentralize access: Grant access to confidential information only to those who have a real need.
• Physical Control: Protect paper documents and storage devices from theft or loss.
• Internal Audits: Perform periodic audits to evaluate the effectiveness of security measures.