SERBIA Law and Practice Contributed by: Stevan Pajović, Tamara Simić Pajović, Medo Zornić and Jelena Stoljiljković, T-S Legal
Effect of Disclosure and Proactive Protection • Authorised disclosure: sharing a secret with employees or partners for operational purposes does not terminate protection, provided it occurs under controlled conditions. The recipient must be bound by a legal or contractual duty of confidenti- ality (eg, NDAs or internal acts). • Accidental disclosure: if a secret becomes public through error or negligence, protection typically ceases as the “secrecy” element is lost. Once in the public domain, the information cannot be “re- privileged.”Unauthorised disclosure (infringement): in cases of unlawful acts like espionage or breach of contract, the holder retains the right to judicial relief (injunctions and damages). However, if the infringement results in the secret becoming widely known, its status as a trade secret is extinguished, leaving the holder with only a claim for monetary compensation. • The loss-prone nature of protection: under Ser- bian law, protection is contingent upon continu- ous effort. If a holder stops applying “reasonable measures,” the information may lose legal eligibil- ity for protection even before a leak occurs. The duration of protection is therefore directly tied to the holder’s proactive and ongoing commitment to secrecy. 5.5 Enforcement and Remedies Civil Remedies and Damages Holders of trade secrets or authorised licensees can initiate urgent proceedings to seek the following. • Injunctive relief: courts can order the cessation or prohibition of the unlawful acquisition, use, or disclosure of a secret, including measures against intermediaries. • Corrective measures: prohibiting the trade of “infringing goods,” including their withdrawal from the market, removal of infringing characteristics, or total destruction at the infringer’s expense. • Damages: compensation covers actual losses ( obična šteta ), lost profits ( izmakla korist ), and any unfair gain realised by the infringer. The Law also explicitly recognises non-material damages for harm to reputation. If exact calculation is impos- sible, the court may award a reasonable royalty
specific legal criteria. This alignment with global IT industry standards marks a significant move toward modernising the domestic legal system, particularly for the intellectual property and technology sectors. Disputes involving specific actors are treated based on their underlying legal relationship, as set out below. • Employee disputes: governed by both trade secret and labour laws, breaches often justify termination. Courts verify if the employer explicitly defined the information as a secret via internal acts. Notably, the Law protects whistleblowers, exempting disclo- sures made in the public interest or to reveal illegal activities. • Joint venture and partnership disputes: conflicts typically arise during “exit” phases or regarding the unauthorised use of shared know-how for com- peting projects. Courts treat these as contractual breaches, focusing on the enforcement of non- compete and non-disclosure clauses within the partnership agreements to prevent unfair advan- tages. • Competitor disputes: these are often categorised as unfair competition. Serbian law strictly prohibits acquiring a competitor’s secret through indus- trial espionage or by inducing their employees to breach confidentiality. Holders can seek injunc- tions to prohibit the marketing of “infringing goods” developed through such misappropriation. 5.4 Duration and Loss of Protection Duration of Protection Unlike other forms of intellectual property, such as patents or trade marks, trade secret protection in Ser- bia is not subject to a fixed statutory term or renewal requirements. Protection lasts indefinitely, as long as the information continues to meet the three essential legal criteria: being secret, possessing commercial value due to its secrecy, and being subject to rea- sonable measures to maintain confidentiality. Conse- quently, a trade secret can theoretically last forever, providing a competitive advantage for as long as the holder successfully prevents it from entering the pub- lic domain.
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