Case law on Trade Secrets in Norway

The definition of “trade secret”, cf. the Norwegian Trade Secret Act (NTSA) Section 2, implements the corresponding definition in the Trade Secret Directive (TSD) art. 2 no. 1, and is based on the three central criteria listed in the first paragraph, letters a, b, and c. 

Regarding the requirement to undertake reasonable steps to keep the information secret, cf. TSD art. 2(1)(c), the Supreme Court in Norway has ruled out that specific labelling or stamping of information as secret/confidential, are to be considered as appropriate steps, cf. Rt. 1997 s. 199 (Cirrus). In this case, the Supreme Court emphasized that as Cirrus had stamped construction drawings with text stating that Cirrus had the ownership rights to the drawing, the drawings must not be copied, reproduced, changed or used in production without written consent from Cirrus. 

Further, the Supreme Court stated in Rt. 2007 s. 1841 that certain requirements must be placed on the company’s conditions in order for a secret to be protected. It must either be expressly marked that a requirement of confidentiality applies, or it must lie in the situation itself that such a requirement applies. 

We stress that both of the cases above are case law before the implementation of the TSD, and that the Ministry of Justice and Public Security (MJPS) has emphasized that the TSD must be understood so that generally more will be required compared to the aforementioned decision (Rt. 2007 s. 1841), and that the TSD on this point involves a careful tightening of the requirements for the holder’s activity compared to Norwegian law before the implementation of the TSD.

The NTSA contains the same provision as the TSD art. 4 which stipulates rules against unlawful acquisition, use and disclosure of trade secrets, cf. NTSA Section 3. However, the NTSA contains not a specific regulation regarding lawful acquisition, use and disclosure of trade secrets, as stated in the TSD art. 3(1)(b). 

The MJPS states in the preparatory work for the law, that the requirement that the action must be unlawful has been chosen as an alternative to implementing the directive’s distinction between actions that are legal, illegal and unenforceable. This means that the legal scope of what is unlawful in connection to NTSA Section 3, must as a rule be upheld against the provisions of the TSD art. 3 to 5, in order to be able to have a firm opinion of whether the situation in question is legal or illegal. 

Therefore, the NTSA, in contrast to the TSD, does not clearly state that e.g. reverse engineering of generally or legally available products shall be considered legal, cf. the TSD art. 3(1)(b). The MJPS, however, emphasize that reverse development undoubtedly will be considered lawful, provided that the conditions in the TSD are met. 

The NTSA Section 4 implements the TSD art. 4(5) cf. art. 2(4). 

All the actions listed in the NTSA Section 4(1), which implements the TSD art. 4(5), presupposes that the intervenor knew or should have known that the product constituted an intrusion into a trade secret. 

Section 2 of the NTSA implements the TSD art. 2(4). Regarding the “production process”, the MJPS note that if a product constitutes an infringement of the trade secret due to aspects of the production process, not only the production itself will be prohibited, but also the subsequent marketing and sale of the product.

Further, regarding “marketing”, the MJPS specify that this for example will constitute a situation where the trade secret is linked to marketing strategies or consumer data, and that these are unlawfully used in the marketing of goods. 

No specific case law has been found. 

The NTSA Section 5 gives the courts the right to issue judgments that prohibit repeating or carrying out intrusions into a trade secret. The provision implements the TSD art. 12(1)(a)(b) and is based on corresponding rules in the Norwegian legislation on industrial property rights. 

The first paragraph of the NTSA Section 5 applies to prohibition orders against completed acts of intervention or complicity. 

The second paragraph gives the right to make a prohibition judgment that targets imminent intervention in two situations. Such authorization is not required according to the directive art. 12. The Norwegian provision must be seen in the context of the directive art. 10 and the courts' right to prohibit imminent interventions under the rules on temporary injunctions. A corresponding right to obtain an injunction against imminent intervention is included in the Norwegian legislation on industrial legal protection

Finally, the NTSA Section 6, regulates measures to mitigate the effects of interventions, and implements the TSD art. 12(1)(c)(d). The provision is designed according to the pattern in corresponding provisions on preventing measures in the Norwegian legislation on industrial legal protection.

The Norwegian Court of Appeal has stated in case LF-2020-92904 that a prohibition is a very serious sanction. Even if an infringement has been established, this does not give the offended party a legal claim that a prohibition be imposed. The question of "whether" a prohibition should be imposed will necessarily depend on an assessment which includes considerations of proportionality, including the effects of the ban and the nature of the unlawful acts. The passage of time can also have an impact on the appropriateness of a prohibition.

The NTSA has no specific regulation regarding the relationship between the provisions stated in the NTSA and contractual secrecy provisions. Nor constitutes the NTSA own provisions regarding freedom of expression and information, which is an important consideration in art. 1 and 5 of the TSD. 

However, the NTSA Section 2 second paragraph stipulates that general experience and skills acquired by an employee during an employment relationship do not constitute a trade secret, cf. TSD art. 1(3)(b). As the NTSA does not constitute a definition of an “employee”, nor “employment”, we assume that the Norwegian Labour Act must be applied additionally. 

Further, there should be noted that the Norwegian Labour Act contains no general statutory confidentiality in employment. However, in practice it is common with provisions on confidentiality in employment agreements, also on information that is not trade secrets.  

No specific case law has been found regarding the relationship between exceptions / allowed uses, as stated in the TSD art. 1 and 5, and contractual secrecy provision.

The TSD art. 9 has been implemented in the Norwegian Disputes Act (NDA) Section 22-12 third and fourth paragraph.

The third paragraph of the NDA Section 22-12 entails a duty to impose confidentiality when the court decides that trade secrets must be taken as evidence.

The directive does not require that the evidence be taken behind closed doors, and therefore the Norwegian law does not require it either. In practice, the doors should be closed to make the obligation of confidentiality more effective.

The third paragraph, last sentence, applies to legal assistants. The background is the directive's article 9 no. 2 last paragraph, which stipulates that the circle of persons who are granted access to court hearings and evidence shall not be greater than what is necessary to ensure the parties to the case effective legal remedies and a fair trial. It will presumably be impractical to use the provision.