Legal regulation of trade secrets under the legislation of Ukraine and the EU

Abstract

Today, the legislation of Ukraine on trade secrets is not systematized and has significant gaps. Relations regarding trade secrets are regulated by the several legal acts relating to various branches of law, and determine only the general principles of legal regulation of such relations. Detection of discrepancies in the legislation of Ukraine and the EU means that the legal protection of trade secrets in Ukraine is uneven and fragmentary, and therefore insufficient. The development of cross-border economic relations between economic entities of Ukraine and the EU requires a unified approach to solving the issue of protecting trade secrets, the absence of which requires studying these issues and developing practical recommendations aimed at approaching the legalregimes of protecting trade secrets in Ukraine and the EU.This article contains the analysis of the provisions of the legislation of Ukraine on the protection of trade secrets, international legal acts in this field and Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protectionof undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure. As a result of the analysis, it was established that: in Ukraine, there is no special legislation on the protection of trade secrets; the concept of trade secret in Ukraine fully corresponds to the concept of a trade secret it the Directive (EU) 2016/943, as well as to the concept of an undisclosed information in the TRIPS Agreement. At the same time, the concept of trade secret in Ukraine needs to be clarified regarding one of the essential signs of trade secret. In addition, in the legislation of Ukraine there is no single approach to the use of the concept of knowhow, as well as regarding the assignment of know-how to IP.
 The legislation of Ukraine requires the implementation of the provisions of European legislation on the legal regulation of trade secrets, namely: not classifying trade secrets as IP objects, while it is an addition or an alternative to IP rights; allocation in the «trade secret» of two types of objects - know-how and business information; determination of reengineering by a fair way of identifying trade secrets; determining the conditions for the lawful acquisition, use and disclosure of trade secrets.