UK Law and Practice Contributed by: Nicola Dagg, Steven Baldwin, Rory Clarke and Ashley Grant, Kirkland & Ellis International LLP
has suffered, and any unfair profits made by the infringer (Regulation 17(3)(i)); and • non-economic factors, including moral preju - dice (Regulation 17(3)(ii)). The court may also award damages on the basis of a hypothetical licence (Regulation 17(4)). This is similar to under Article 13 of the IP Enforce - ment Directive (Directive 2004/48/EC). Further, the court may award negotiation dam - ages where a claimant loses control over a valu - able trade secret due to misappropriation. The court will consider hypothetical licence agree - ments to quantify damages, as well as actual negotiation documents such as emails between the parties leading to/surrounding the negotia - tions. There is no automatic right to negotiation damages; it is fact specific, and claimants must show a valuable lost opportunity. Damages are compensatory in nature (Kieran Corrigan & Co Ltd v OneE Group [2024] EWHC 2146). 7.3 Permanent Injunction Permanent injunctions are available as a com - mon law and statutory remedy for trade secrets misappropriation. Regulation 14 provides for the following non- financial corrective measures, which include permanent injunctions and the delivering up of “infringing” goods: • the cessation of, or (as the case may be) the prohibition of, the use or disclosure of the trade secret; • the prohibition of the production, offering, placing on the market or use of infringing goods, or the importation, exportation or stor - age of infringing goods for those purposes; • the adoption of corrective measures with regard to the infringing goods, including,
where appropriate, (i) recall of the infring - ing goods from the market, (ii) depriving the infringing goods of their infringing quality and (iii) destruction of the infringing goods or their withdrawal from the market, provided that the withdrawal does not undermine the protection of the trade secret in question; and • the destruction of all or part of any document, object, material, substance or electronic file containing or embodying the trade secret, or, where appropriate, delivering up to the applicant all or part of that document, object, material, substance or electronic file. In making a Regulation 14 order, the court must take into account the specific circumstances of the case, including, where appropriate (Regula - tion 15): • the value or other specific features of the trade secret; • the measures taken to protect the trade secret; • the conduct of the infringer in acquiring, using or disclosing the trade secret; • the impact of the unlawful use or disclosure of the trade secret; • the legitimate interests of the parties and the impact that the granting or rejection of the measures could have on the parties; • the legitimate interests of third parties; • the public interest; and • the safeguard of fundamental rights. If the court places a time limit on its Regulation 14 order, that limit must be sufficient to elimi - nate the commercial or economic advantage obtained by the misappropriation (Regulation 15(2)). There are no limits on the length of a per - manent injunction; however, the defendant can apply to the court for the revocation of a Regula - tion 14 measure on the basis that the information
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