Ireland: Know How To Protect Your Know-How

Last Updated: 18 July 2018
Article by Joanelle O’Cleirigh and Colm Maguire
Most Read Contributor in Ireland, July 2019

Organisations should take steps now to ensure their valuable know-how and business information can be classed as a 'trade secret' to obtain the protection offered by new Irish Regulations.

The Irish Trade Secrets Regulations transpose the EU Trade Secrets Directive into Irish law, and will benefit those seeking a remedy for the unlawful acquisition, use or disclosure of their trade secrets.

The Regulations place trade secret protection on a statutory footing for the first time in Ireland. Until now, trade secrets were only protected through the common law action for breach of confidence.


A trade secret, as defined by the Directive, is information which:

  • is secret, in the sense that it is not generally known or accessible;
  • has commercial value; and
  • has been subject to reasonable steps to keep it secret.

The recipe for Coca-Cola is the classic example of a trade secret, but trade secrets come in many forms and most organisations will have valuable knowhow and business information of some description. The definition of a trade secret in the Directive is broad enough to encompass a business plan, pricing strategy, supplier or customer list, formula or process, for example.


In some cases an invention cannot be patented because it does not meet the necessary criteria for patentability or it may not make commercial sense to seek patent protection (as obtaining a patent requires the disclosure of the invention). In such cases trade secret protection may be an effective alternative.

Unlike patents, which last only for 20 years, trade secrets are protected from the time of their creation and remain protected indefinitely, provided they are kept secret.


While you do not need to register a trade secret to obtain protection, there are certain steps organisations should take to proactively protect their valuable know-how and business information. Taking these steps now will likely reduce the risk of having to bring costly legal proceedings to stop someone from unlawfully using or disclosing your trade secrets. It will also mean that, in the event that legal proceedings are necessary, your case will not fall at the first hurdle as you should be able to demonstrate to the court that you took reasonable steps to keep the information secret. In summary, you should:

  • Identify the information that you regard as a trade secret and ascertain whether this information meets the definition in the Directive;
  • Ensure trade secrets are stored securely. If in hard copy, ensure they are marked 'Confidential' and stored under lock and key. If in electronic format, ensure they are password protected or encrypted.
  • Segregate trade secrets, insofar as possible, from other information on your IT system;
  • Ensure you can track access to documents containing your trade secrets and that you can easily ascertain who has viewed, edited, printed or forwarded them.
  • Ensure access to trade secrets is limited to appropriate people and that these people have signed Non-Disclosure or Confidentiality Agreements;
  • Ensure all employment contracts include confidentiality and nondisclosure provisions and that these continue to apply even if the employment relationship ends, and that employee handbooks, policies and procedures also reinforce the duty of confidentiality.


If someone unlawfully acquires, uses or discloses your trade secrets, you can issue legal proceedings in the District, Circuit or High Court (depending on the value of the claim).

Before the court can intervene, you will need to show that you took reasonable steps to keep the information secret.

The court has powers to make various orders, including orders:

  • prohibiting the wrongdoer from using or disclosing the trade secret, or stopping them from doing so;
  • prohibiting the placing of any object embodying the trade secret on the market;
  • that any object embodying the trade secret be destroyed or recalled, or that it be deprived of its infringing quality;
  • directing the wrongdoer to pay damages.

The court may also make orders to protect the trade secrets pending the full determination of the proceedings.

You may also have a claim under the common law for breach of confidence. How these remedies will interact or overlap remains to be seen.


The court can order that those involved in the legal proceedings (including court officials, witnesses and experts) cannot use or disclose any alleged trade secret of which they become aware as a result of their involvement in the proceedings.

The order will remain in force after the proceedings have been determined. However, the order will cease to have effect if the court determines that the alleged trade secret is not in fact a trade secret within the terms of the Directive or if the information becomes generally known or readily accessible.

The court can also restrict access to any document containing an alleged trade secret, restrict access to hearings when an alleged trade secret might be disclosed and restrict access to the corresponding transcript. This is similar to setting up a confidentiality club or ring in commercial proceedings between business competitors.


The statutory protection of trade secrets is a welcome development for those organisations that invest in acquiring, developing and applying trade secrets to give them a competitive advantage in the market. Such organisations should take active steps now to ensure that their trade secrets are adequately documented and kept secret. Taking these steps will increase the likelihood that the Regulations will provide a remedy to organisations in the event that their trade secrets are misused.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Practice Guides
by Mondaq Advice Centres
Relevancy Powered by MondaqAI
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions