Trade secret laws and regulations in Serbia

Yes. On 27 May 2021, the National Assembly of the Republic of Serbia adopted a new Law on the Protection of Trade Secrets, by virtue of which Serbia aligned its regulations in the field of protection of intellectual property and business secrets with Directive 2016/943 EU.

The protection of trade secrets is regulated by the Law on Protection of Trade Secrets ("Official Gazette of the Republic of Serbia", No. 53/2021) (the “Law”).

Other laws, such as laws governing the conditions and procedure for marketing of medicines, medical devices, plant protection products in agriculture and forestry, biocidal products, etc. may also have provisions related to trade secrets.

The Law on Confidentiality of Information ("Official Gazette of the Republic of Serbia", No. 104/2009) regulates classified information of interest for national and public security, defence, internal and external affairs of the Republic of Serbia, protection of foreign classified information, etc.

A trade secret is defined as information meeting the following conditions:

• it is secret due to it not being generally known or easily accessible to persons who usually come into contact with this type of information during their activities;
• it has commercial value; and
• the person holding it has taken reasonable measures to preserve its confidentiality.

The information protected as a trade secret include, for example, knowledge and experience, business information, and technological information.

Yes. Under the Law measures for preserving the confidentiality of trade secrets that are deemed "reasonable" include but are not limited to:

• internal acts on the handling of trade secrets and the rights and obligations of persons handling trade secrets; 
• measures of physical or electronic protection of access and handling of business secrets;
• marking documents as “confidential” or with similar marks; and
• conclusion of non-disclosure agreements (NDA).

Yes.

In general, although the party other than the holder has the ability to obtain, use or disclose trade secrets, in the event of a dispute a person obtaining or disclosing a trade secret must prove that this was done in accordance with the law.

The right over the trade secret is considered an intellectual property right, not an ownership right. A person legally entitled to control the use of trade secrets is to be considered the holder of a trade secret. There can be more than one holder of a trade secret.

The Law regulates the infringement of trade secrets in a comprehensive way stipulating that a trade secret is illegally appropriated if obtained by unauthorised access, misappropriation, or duplication of documents, objects, materials, substances, or electronic files containing a trade secret (or from which a trade secret can be derived), or by other actions contrary to good business practices.

The use or disclosure of a trade secret is deemed illegal if performed by a person who i) obtained the trade secret illegally; ii) has breached the confidentiality agreement or other obligation related to the prohibition of disclosure of business secrets; or iii) breached an obligation restricting the use of the trade secret.

The production, offering, and sale of infringing goods are also considered the illegal use of trade secrets if the person who performed those activities knew or could have known the trade secret was used illegally.

Yes. The court may issue a writ on security interest upon request of the holder of the trade secret who makes it probable that the trade secret exists, he or she is the holder of the trade secret, and an illegal acquisition, use, or disclosure of the trade secret has occurred or will occur.

Such measures include:

• taking a detailed description of trade-secret infringing items;
• confiscation of trade-secret infringing items, and, if justified, confiscation of documents, materials, and objects (accessories, tools) mainly used in the creation or placing on the market of trade-secret infringing items;
• inspection of premises, vehicles, books, documents, and databases;
• examination of witnesses and court experts.

Upon request of the holder of the trade secret who makes it probable that the trade secret exists, he or she is the holder of the trade secret, and illegal acquisition, use, or disclosure of the trade secret has occurred or will occur, the court may order a temporary measure:

• termination or prohibition of the use or disclosure of a trade secret;
• prohibition of production, offering, placing on the market or use of infringing goods;
• confiscation of goods suspected of having been infringed, including imported goods, to prevent them from being placed on the market and circulated.

Alternatively, the court may allow a person suspected of infringing a trade secret to continue using the trade secret, if he or she provides collateral to secure damages to the holder of the trade secret, whereas such collateral does not entitle it to disclose a trade secret.

Also, upon request of a holder of the trade secret who makes it probable that the trade secret was illegally obtained, used, or discovered in the course of business, for the purpose of obtaining an economic benefit, and that such infringement threatens to cause him or her irreparable damage, besides the interim measure, the court may also order:

• seizure of movable and immovable property of the person against whom a temporary measure is proposed;
• ban on the payment of funds from the account of the person against whom a temporary measure is proposed.

As for the final remedy, the holder of the trade secret may bring an action in court against any person who commits a breach of the trade secret. The following may be ordered by the decision of the court.
In the event of a breach of a trade secret, the holder of the trade secret may file a lawsuit to request:

• determination of the infringement;
• cessation of the infringement, or, as the case may be, a ban on the use or disclosure of a trade secret;
• a ban on the production, offering, placing on the market or use of infringing goods, or a ban on the import, export or storage of infringing goods for the purpose of producing, offering, placing on the market or using goods;
• determination of appropriate measures relating to the infringing goods, including withdrawal of such goods from the market, removal from the goods of properties that constitute infringing goods or destruction of infringing goods, or if justified, its withdrawal from the market, provided that the withdrawal of the goods does not jeopardise the protection of the business secret to which the lawsuit relates;
• destruction in whole or in part of documents, objects, materials, substances, or electronic documents that contain trade secrets or which constitute trade secrets or, if appropriate, hand over those documents, objects, materials, substances, or electronic documents in whole or in part to the plaintiff.
• the cessation of actions representing an immediate threat of unlawful acquisition, use, or disclosure of a trade secret;
• compensation for damages; and
• publication of the judgment in the public journal at the defendant's expense.

Yes. The applicant must bring an action for a substantive decision on merits within 30 days from the date of the decision on the interim measure or the writ on security interest, respectively.

Compensation of damages or other financial compensation can be awarded by the court in the appropriate proceedings.

Apart from that, the parties can settle out of court or engage in mediation.

The court may order an interim measure before delivering it to the other party and allowing it to make a statement, particularly if there is a risk the applicant will suffer irreparable damage.

Also, the court may issue a writ on security interest before delivering it to the other party and allowing it to make a statement, particularly if there is a risk the applicant will suffer irreparable damage due to the delay, or that some evidence will not be able to be presented or that its later presentation will be hindered.

In determining the financial compensation, the court considers all the circumstances of the case, such as the negative economic consequences suffered by the holder of the trade secret, which includes actual damages and lost profits, as well as the benefits obtained by the trade-secret infringement.

If the court cannot determine financial compensation, the court takes into account the amount of compensation that the person who infringed the business secret would usually pay for the lawful use of the business secret.

An action for breach of a trade secret may be filed within one year from the date the plaintiff learned of the injury and the perpetrator, and no later than five years from the date the injury was committed (i.e. from the date of the last injury if committed continuously).

The limitation period of one year runs from the date the plaintiff learned of the injury and the perpetrator, and the limitation period of five years runs from the date the injury was committed (i.e. from the date of the last injury if committed continuously).

There are no special circumstances set by the Law on Protection of Trade Secrets that interrupt or suspend the limitation period.

Yes. Parties, their counsels or other representatives, court clerks, witnesses, court experts, and other persons participating in court proceedings for illegal acquisition, use, or disclosure of trade secrets (or who have access to documents that are an integral part of court proceedings) may not use or disclose trade secrets or information that may constitute a trade secret, which the court has established as confidential and those persons have learned about due to their participation in the court proceedings.
Said persons are bound by this obligation even when the court proceedings have ended.
However, this obligation shall cease:

• if a final court decision determines that information, which may constitute a trade secret, does not meet the conditions set out in the Law; or
• if information constituting a trade secret becomes over time generally known or easily available to persons usually involved with this type of information.

Also, the court may, upon request of a party, order special measures to maintain the secrecy of a trade secret or information that may constitute a trade secret used or referred to during court proceedings related to the illegal acquisition, use, or disclosure of a trade secret, such as:

1. exclusion of the public from the entire court proceedings or part of the proceedings;
2. limiting the number of persons who have access to documents submitted by the parties to the proceedings or third parties, which contain a trade secret or information that may constitute a trade secret;
3. limiting the number of persons attending hearings at which a trade secret or information that may constitute a trade secret could be disclosed, as well as limiting access to the minutes from those hearings;
4. prohibition that a court decision, in which the relevant data containing business secrets have not been redacted, be made available to third persons.

Yes. The Law excludes the application of its provisions on measures, legal remedies, and procedures in the following cases:

• exercising the right to freedom of expression and information, in accordance with the Constitution of the Republic of Serbia, the European Convention for the Protection of Human Rights and Fundamental Freedoms and judgments of the European Court of Human Rights, the Charter of Fundamental Rights importance, as well as the law governing public information and media, in accordance with the freedom and diversity of the media;
• disclosing criminal offences and other illegal acts, provided that the person who obtained, used, or disclosed a trade secret acted to protect the public interest;
• disclosing trade secrets by employees to their representatives, in accordance with special regulations, provided that the disclosure of a trade secret was necessary for the lawful performance of an employee representative position;
• protecting the rights envisaged by a separate law; or
• in connection with the provision of legal assistance by lawyers in accordance with the regulations governing the position of the legal profession.

Upon the request of the defendant in the litigation or the proceedings for interim or security interest measures in relation to the infringement of the trade secret, the court may determine the appropriate monetary amount at the expense of the plaintiff, as a means of security in the event that the claim is not substantiated.

No. The request of the defendant is filed in the litigation or the proceedings for interim or security interest measures initiated by the plaintiff in relation to the infringement of the trade secret.

Concerning employees, the Law provides that obtaining a trade secret is considered legal if the trade secret was obtained by exercising the right of employees or employee representatives to information and consultation under special regulations. In addition, the Law excludes the application of its provisions on measures, legal remedies, and procedures to disclosing trade secrets by employees to their representatives, in accordance with special regulations, provided that the disclosure of a trade secret was necessary for the lawful performance of an employee representative position.

Whistleblowers are also protected in accordance with the Law on Protection of Whistleblowers ("Official Gazette of the Republic of Serbia", No. 128/2014), which requires that the personal data of whistleblowers are protected, that employers cannot take any actions against employed whistleblowers (e.g. terminating employment, taking disciplinary measures, lowering salary, etc.), that the whistleblowers can seek protection from the courts, etc.

Yes. The employer will be liable for damages caused to a third party by its employee in his work or in connection with his work, unless it proves that the employee acted as he or she should have in the given circumstances.

The injured party shall have the right to claim compensation for damage directly from the employee if he caused the damage intentionally.