WIPO (World Intellectual Property Organization) recently has launched a new service, WIPO PROOF – Trusted Digital Evidence https://www.wipo.int/pressroom/en/articles/2020/article_0012.html
What is this service about? It is a new, easy to handle and not expensive tool to create evidence beyond doubt of the existence of any digital file in any format at a given point in time. Evidentiary support of what has been developped or created when and by whom is often extremely helpful for the protection of unregistered rights. WIPO expressively is emphasizing trade secrets within that group of rights.
But to what extent WIPO PROOF is offering evidentiary support to protect trade secrets?
To allow for and more importantly to maintain legal protection as a trade secret, the underlying information must be kept secret. In Europe the Directive (EU) 2016/943 of 8 June 2016 requires in Art. 2, amongst other features, that the information ‘has been subject to reasonable steps under the circumstances, ….to keep it secret’. Similar definitions can be found in Art. 39 II TRIPS Agreement as well as in legislation and jurisprudence in the U.S.A. and Japan.
The interpretation of what steps are reasonable to maintain protection is one of the most interesting and certainly controversial issues of future jurisprudence. For the time being we are lacking decisions of the ECJ as well as the BGH (Federal German Court of Justice). Equally, former decisions of German courts are not helpful for the interpretation. Prior the Directive and its implementation into national German law (by means of the GeschGehG), the requirement of reasonable steps to keep information secret was not part of the definition of a trade secret. Formerly the intent of the trade secret owner to keep an information secret was sufficient.
WIPO PROOF may be used to demonstrate that in the very beginning of the development of a trade secret a step was taken to safeguard this information. But that is not enough. It is merely one step in a whole list of requirements needed to ensure the safeguarding of the trade secret. For evidencing the more challenging perpetuation of reasonable steps taken over the lifetime of a trade secrect, this service does not provide any help.