Newsletter – June 2019

An entirely new Protection of Trade Secret Act (PTSA) was promulgated in the Bulgarian State Gazette issue 28 on April 5 2019. This law has been transposing Directive (EU) 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (Directive 2016/943). A careful reading of PTSA actually indicates that its writings mainly reiterate literally the provisions of Directive 2016/943. Moreover, the definition of a trade secret in PTSA differs conceptually from the definition in the Law on Protection of Competition. This legislative approach in Bulgaria does not simplify the legislation, which in the present case could be successfully achieved through referral and thus achieving legislative economy.

In the PTSA the legislator regulates the conditions and the procedure for protection against unauthorized acquisition, use and disclosure of trade secrets pursued in court proceedings in civil cases. The new rules do not apply to:

• the right to freedom of expression/speech and the right to information;
• the disclosure of trade secrets by its holder where such disclosure is in public interest and necessary for the exercise of the powers of public authorities;
• the independence of trade unions and employer organizations and their right to bargain collectively.

A trade secret is any commercial information, know-how and technological information simultaneously satisfying the following requirements:

• is a secret in such a way that as a whole or in the precise configuration and assembly of components is not generally known or readily accessible to members of the community who habitually use such information;
• has commercial value because of its secret nature;
• in relation to it, measures have been taken to keep it secret from the person who has control over the information.

Holder of a trade secret is any legal entity or a physical person that legally controls trade secret. An offender is any natural or legal person who has unlawfully acquired, used or disclosed a commercial secret. Goods – subject to infringement – are goods which design, projection, characteristics, operation, production process or marketing are significantly influenced by trade secrets that have been unlawfully acquired, used or disclosed. According to PTSA – a violation occurs also when offering or providing services which characteristics and manner of provision or marketing are significantly influenced by business secrets that have been unlawfully acquired, used or disclosed.