The amendment of the Law on Industrial Property is not a secret. Yet, it was changed in order to provide protection for trade secrets, which previously lacked in our legislation. To sum things up, it was approved on 7 July 2021 by the Assembly of the Republic of Albania, published on 6 August in the Official Gazette, and entered into force 15 days later.
The road to the European Union (EU) is more than 120.000 pages long. In other words, before joining the EU, Albania must translate and align its domestic legislation in accordance with the requirements of acquis communautaire, particularly with the European Directive 2016/943 On the protection of trade secrets.
This time, under the loop of the legislative approximation process was the amendment of law “On Industrial Property”, which major novelties consists on:
- The introduction of the concept “trade secret”
- The creation of a new database administered by the GDIP
- Elucidation of the competences of the State Inspectorate of Market Surveillance, and
- Amendment of several articles.
Trade secret is defined as the type of information which by its nature is unknown or inaccessible to persons who, despite that their daily work might provide access to it, they still can’t get in touch with it, because its holder has taken all the necessary measures on protecting the information from third parties. Based on this fact, this type of information holds a commercial value for the mere fact that it’s a “secret”.
Moreover, the law stipulates all the situations where the acquisition of trade secrets is considered lawful, and those where it doesn’t. For example, a trade secret exposed while employees are exercising their right for information is valid. Whereas, an unauthorized copying of information which is lawfully in the possession of the holder of trade secrets is illicit.
By the same token the law protects the confidentiality of trade secrets which have the risk of being exposed during court proceedings. On that ground, all subjects participating in a trial are required to comply with this legal provision.
A better understanding of the importance of trade secrets for the business environment derives from the practice of the European Court of Justice (ECJ), which considers the protection of business secrets as a general principle of law, in particular during public procurement – where the risk for a serious damage resulting from improper communication of certain information to a competitor is higher. Therefore, the court’s practice loads the competing party with the obligation of previously pleading which type of information is considered confidential or business secrets, in order for the organizing body to take all the necessary measures to adequately protect the information communicated to it.
To that end, the Albanian legislator has set a milestone in strengthening the conditions for a fair competition in the market.
Another novelty of the law is the formalization of the System of Administration of Objects of Industrial Property (SAPI) as a special electronic register created and administered by the General Directorate of Industrial Property (GDPI). It will serve as a special database for the collection and processing of data of the objects of industrial property. On that ground, the law rigorously lists the category of subjects allowed to have access to SAPI.
In spte of a very protective legal framework, titleholders’ rights might get violated by unlawful actions. On that ground, the law loads the State Inspectorate of Market Surveillance with the responsibility of monitoring and guaranteeing the observance of IP rights, by acting ex officio on the existence of a reasonable suspicion. Anyhow, it might also act upon the request of the titleholder or his authorized representative (Read more on the legal conditions of becoming an IP).
In both cases, SIMS has the competence to decide upon the confiscation of the goods infringing IP rights, and if this initial suspicion is valid, the procedure continues with the destruction of goods.
On the occasion that subjects do not agree with SIMS actions, they can proceed with a lawsuit at the competent Court.
With the new amendments, the General Directorate of Industrial Property (GDIP) is the competent authority which certifies the Authorized Representatives of IP. Previously the law stipulated a licensing process.
To conclude, these amendments go beyond Albania’s endeavours towards European Integration. In an intercommunicative society, IP products and titleholders need a legit harmonized protection in every State.