What stays and what changes
The definition of a trade secret under Section 504 of the Civil Code does not change. It will still cover competitively significant, identifiable and valuable facts that are not commonly available in the relevant business circles, relate to the business, and are appropriately protected by their owner.
The key shift is conceptual. Today, infringement of a trade secret is one of the statutory forms of unfair competition. The injured party must therefore also prove the elements of the general clause — above all, that the conduct occurred in the course of business dealings. Outside a competitive relationship, protection is currently very limited.
The amendment moves the core rules out of unfair competition into a separate part of the Civil Code. Protection will no longer be conditional on business dealings. Where an infringement does occur in the course of business, it will still simultaneously constitute unfair competition. Newly protected will be situations with no competitive rivalry at all — for example a former employee who takes copies of confidential materials and uses them in another job, or a person who passes internal materials to third parties without running any business.
Mind the boundary: the rules do not cover experience and knowledge honestly acquired by an employee in the ordinary course of work. Copying a customer database before leaving, however, will be a standalone infringement — even if the employee never uses it anywhere.
Three forms of infringement
The amendment clearly defines three basic forms of infringement:
- Unlawful acquisition — someone, without the holder's consent, gains access to a medium from which the secret can be ascertained, makes a copy or appropriates it, or otherwise obtains it contrary to the principle of fair business dealing.
- Unlawful disclosure to another person — breach of confidentiality or of a statutory or contractual duty not to spread the information further.
- Unlawful use for oneself or another — practical application in production, services, approaching customers and other activities without consent.
Significant is the express anchoring of acquisition. A company will not have to wait until it proves specific use of the information — proven exfiltration (exporting databases, downloading documentation, forwarding files) will suffice. This moves the defence to an earlier stage of the incident.
Third-party liability and "infringing goods"
The amendment also addresses persons who obtain a secret indirectly. Handling a secret is treated as unlawful where the person knew, or ought to have known, that the information came from someone who had obtained it unlawfully. Relying on "ignorance" of an obviously problematic origin of someone else's know-how will no longer work.
Practically important is the new concept of infringing goods — a product whose design, characteristics, functioning, production process or marketing significantly benefits, without authorisation, from a trade secret. Infringement will cover not only use of the information but also the manufacture, offering, placing on the market, import, export or storage of such goods. This allows targeted action against products built on misused know-how.
When there is no infringement
The amendment also defines exceptions. There is no infringement in the case of:
- independent discovery or creation of an equivalent solution,
- reverse engineering of an item that is publicly available or lawfully held,
- acquiring a secret in the exercise of employees' statutory right to information and consultation.
Special protection is given to the media and whistleblowers: acquiring or disclosing a secret is not unlawful where done to reveal wrongdoing in the public interest or in the exercise of freedom of expression.
More effective defence tools
The injured party may seek an order to refrain from further infringement and to remove the unlawful state, plus damages, surrender of unjust enrichment and adequate satisfaction. The amended Act No. 221/2006 Coll. will additionally allow an express claim for a ban on further use of the secret, a ban on manufacturing and distributing the affected goods, their recall, modification or destruction, and the destruction or transfer of the media. The costs will as a rule be borne by the infringer.
Equally important are the procedural confidentiality safeguards. Courts will get clearer rules for restricting access to the parts of the file containing a secret, the option to exclude the public from part of the hearing, and a duty to anonymise the judgment before publication. Parties and their representatives will be bound by confidentiality even after the dispute ends. This resolves the current dilemma for claimants: protect the secret vs. successfully prove it.
Courts will also gain more flexible tools — within interim measures they may allow continued use of the secret against a security deposit, or, for "unaware" infringers, replace non-monetary measures with monetary compensation (capped at the usual licence fee).
What to do now
The amendment is still under discussion, but the planned effective date of 1 January 2027 is close. We recommend that companies:
- review the internal classification of information and rules on access, sharing and disposal,
- set up access controls and logging — audit trails are key evidence of "acquisition",
- strengthen the contractual regime (NDAs, purpose-limitation clauses, penalties, cascading confidentiality onto subcontractors),
- standardise offboarding of key people (revoking access, checking devices, declarations of non-retention of copies),
- screen the supply chain with regard to the "knew / ought to have known" standard.
Courts will now demand a genuinely applied — not merely formal — protection regime from the holder. Building readiness ahead of time therefore pays off.
This article is for informational purposes only and does not replace individual legal advice. The legal framework evolves; we recommend verifying the current wording of the regulations and thresholds before a specific transaction.
