By judgment of 21 May 2020, the Milan Regional Administrative Court (TAR) recognised as lawful, for the successful tendered of a catering service, not to disclose the list of suppliers of BIO products necessary for the production of its menus, as it considered this to be a ‘trade secret’.
This is a remarkable statement in a sector, that of food, where the protection of creativity is traditionally entrusted to the confidentiality of data and recipes.
The qualification of ‘trade secret’ implies the advantage of the application of articles 98 and 99 of the Industrial Property Code as amended by Legislative Decree 63/2018 in implementation of EU Directive 2016/943 and therefore exclusive protection.
However, it should be borne in mind that art. 98 of the Industrial Property Code, in addition to providing the definition of ‘trade secret’ (which includes all the information that guarantees the legitimate holder an economically significant competitive advantage because it is kept secret), conditions its protection to the simultaneous existence of three conditions: (i) the fact that it is not known or easily accessible for operators in the field, (ii) its intrinsic economic value, (iii) it is subject by the legitimate holder “to measures which can reasonably be considered adequate to keep it confidential”.
Those who believe that they hold information and data that they consider worthy of protection as ‘trade secret’, have the burden of proving that they have implemented adequate measures to keep confidential the data, which it is useful to have prepared in advance taking into account the law and the relevant case law.