Proportionality of Trade Secret Remedies in European Union – In Comparison with Patent Law Enforcement

Abstract In academic discourse it has been pointed out that many European courts do not pay sufficient attention to assessing the proportionality of patent law remedies. Article 3 of the Enforcement Directive (IPRED), which harmonizes the remedies for all intellectual property rights (IPRs), requires that remedies be proportionate. However, it seems that this requirement is often overlooked, with more attention being paid to the rest of Art. 3, namely the requirements that remedies be efficient and dissuasive. This article contributes to the discussion on the potential over-enforcement of IPRs, but focuses in particular on analyzing the remedies available under the Trade Secret Directive (TSD). Special attention will be paid to the explicit proportionality factors under the TSD. The availability of the bona fide defense under the TSD will also be analyzed. In this article, comparisons will be made between remedies under patent law and those under trade secret law. This article argues that the trade secret regime differs from the patent regime. Therefore, balancing the various interests under the TSD proportionality factors and the bona fide defense is more important under the trade secret regime than under the patent regime. This article seeks both to identify the differences between the two regimes and to dissect possibilities for a more balanced approach to enforcement practices under the IPRED for patent rights.