Trade secret laws in North Macedonia

No.

Yes. These include local laws on: (i) Competition; (ii) Labour Relations, (iii) Companies; (iv) Contracts and Torts; (v) Litigation; (vi) Protection on Plants; (vii) Securities; (viii) the Criminal Code and several other laws regulating certain aspects of trade secrets.

Additionally, Article 39 of TRIPS on protection of undisclosed information is also applicable because N. Macedonia is member of the WTO.

According to local Competition Law, trade secrets are defined as information that fulfils the following cumulative conditions: (i) is classified as a trade secret based on the law or internal act; (ii) has economic and market value and whose disclosure may result in an economic advantage for other companies; and (iii) is not published or available to the public;

Yes. Specific measures must be put in place in accordance with laws, internal acts and contractual obligations in order that trade secrets be protected. Namely, only a measure that is explicitly classified as a trade secret in internal acts of the company can benefit from the trade secret protection regime.

Yes.

In practice, there are cases when obtaining, using or disclosing trade secrets can be done by the party other than the trade secrets' holder. If there is a dispute, any person who claims that he has obtained or disclosed trade secret, must prove that he has done so in accordance with the law.

In N. Macedonia, a trade secret is considered an intellectual property (i.e. personal) right, not an ownership right. A person or persons who controls the use of trade secrets by virtue of the law will be considered the holder or holders of the trade secrets. Hence, it is possible for more than one person to be the holder of a trade secret.

Any acquisition, disclosure or use of information, which is considered a trade secret (pursuant to local laws or internal acts) by an unauthorised person constitutes an infringement of a trade secret.

Yes. The court may impose an interim measure upon the request of a person who provides relevant evidence that he may suffer irreversible damage related to the unauthorised acquisition, disclosure or use of a trade secret by another person and that there is a reasonable risk that the prevention of damages without imposing the measure may be significantly harder to achieve.

Upon accepting the request for the imposition of an interim measure, the court may order a prohibition for modifying or transferring the items subject to the interim measure and can order their seizure. The court can also prohibit any particular person to undertake any activities, which could result in damages against the person who requested the interim measure.

Regarding the final remedy, the holder of the trade secret may submit a lawsuit before the court against any person who breaches a trade secret. The following may be ordered by the decision of the court:

1. the ceasing of activities that may lead to the unlawful acquisition, use or disclosure of a trade secret and the prohibition of the unlawful acquisition, use or disclosure of information, which is a trade secret;
2. compensation for damages, including actual damages and lost profits;
3. a monetary compensation (regardless of whether or not there is compensation for damages) depending on the extent of the breach and the circumstances of the case;
4. publication of the judgment at the expense of the defendant; and
5. termination of employment of the perpetrator.

No, a specific period is not determined in advance. The court will determine the deadline for initiation of the proceedings for a substantive decision on the merits in the decision for imposing an interim measure. The above deadline will be determined on a case-by-case basis.

Yes. Compensation of damages or other financial compensation can be awarded in proceedings before the competent court.

The court may decide on the proposal for imposing interim measure before delivering the ruling to the defendant and allowing him to make a statement in the following situations:

1. if the plaintiff, as a result of the delay, could suffer irreparable damage;
2. to eliminate the imminent danger of unlawful damage;
3. to prevent violence.

Compensation for damages includes compensation of actual damages and loss of profits. The amount of damage compensation will be determined by the competent court in the court proceedings.

Note that Macedonian legislation does not stipulate a special limitation period for claims related to misappropriation of trade secrets. Therefore, the general limitation period of five years is applicable.

If the misappropriation of a trade secret results in damages, the claim for damage compensation could be submitted within three years from the day the plaintiff learned of the damage and the perpetrator. The limitation period can be no later than five years from the day the damage occurred.

The limitation period of three years runs from the day the plaintiff learned of the damage and the perpetrator. The limitation period of five years runs from the day the damage/injury occurred.

Yes. The limitation period will be interrupted if the person submits a lawsuit to the court. After interruption, the limitation period starts again on the day when the court proceedings are finished.

The limitation period will be suspended if certain insurmountable obstacles have prevented the creditor from submitting a lawsuit before the court.

Yes. Pursuant to Macedonian legislation, the courts, state authorities and other concerned parties in certain proceedings will take appropriate measures to preserve the secrecy of the undisclosed information protected in accordance with statutory provisions governing the protection of trade secrets.

Yes. In certain cases, trade secrets could be revealed to Macedonian authorities or other persons (e.g. auditors) under conditions stipulated by law.

Based on a request of the defendant in the litigation or the proceedings for imposing interim or precautionary measures in relation to the infringement of a trade secret, the court may determine the appropriate monetary amount at the expense of the plaintiff, as a guarantee for the damages that the defendant may incur in the event that the request for imposing interim or precautionary measure is not substantiated.

The request of the defendant for provision of a guarantee is filed in the litigation or the proceedings for imposing interim or precautionary measures initiated by the plaintiff in relation to the infringement of the trade secret. Therefore, no separate legal proceedings are initiated for such measures.

Employers can include separate provisions in employment contracts requiring employees to protect trade secrets. It is recommended that such provisions to be i) linked with specific time periods (during and/or after employment); ii) sufficiently exact and certain; and iii) connected with a specific penalty. 

The need for exactness is especially important and can be challenging, and in that manner, each employer should specifically define (under a separate bylaw or otherwise), which document/information is deemed as trade secret. However, some documents must be publicly available and, therefore, cannot be defined as trade secrets or confidential.

Alternately, the provision defined above may be included in a separate confidentiality agreement.

According to Macedonian law, employees should not use on their own data or information (deemed trade secrets by their employer under a specific bylaw), which was given to them, nor should they give this information to third parties. Employees are obliged to respect trade secret provisions if they knew or should have known that the relevant data/information is secret.

Note that the above contractual obligations apply only to “employees” and not to other categories of personnel, such as non-employed contractual workers, self-employed contractors, etc.

Employers can rely on post-termination provisions. However, the enforceability of these provisions may be challenging. As this is a complex and specific area, separate analyses on case-by-case bases should be made.

No.

Yes. The employer will be liable for damage caused by its employee in his/her work or in connection with his/her work to a third party, unless the employer proves that the employee acted accordingly in the given circumstances.

The employer, who paid compensation of damages to a third party, could request reimbursement of the paid compensation by the employee if the employee caused the damage intentionally or through gross negligence.

Contractual parties can either i) include specific provisions for definition of what is deemed trade secrets; or ii) conclude separate non-disclosure agreements, which would regulate the rights and obligations of each party. Parties may also determine the liability for each breach. What is most important is to include a specific penalty clause in a contract for each breach. However, the judicial enforcement of these clauses may be challenging. Therefore, specific analyses should be made on a case-by-case basis.

Some of the typical pitfalls include i) not including a specific definition of a “trade secret”; ii) providing a too broad or extensive definition of a “trade secret” that constitutes a breach of a law; and iii) not clearly defining the penalty provisions for breach of trade-secret protection.

The crucial aspect in trade-secret cross-border commercial contracts is the definition of the applicable law. Therefore, it is vital to keep in mind the applicable law’s provisions and scope, and whether such provisions would be enforceable.

Although there is a practice of including penalty clauses in a commercial contract or in a separate NDA, we cannot confirm whether such clauses would be enforceable in court, through enforcement, or through other procedures.