In 2017, the focus will continue to be on the impact of the new Trade Secrets Directive and the expected realisation of the Unified Patent Court. In addition, the Court of Justice of the EU will hopefully provide some useful answers in a number of intellectual property cases, and we can expect new (largely media-related) legislation at both EU and national level.

Keeping secrets secret

The Trade Secrets Directive, which aims to standardise national civil law in EU countries against the unlawful acquisition, disclosure and use of trade secrets, was adopted in June 2016. It is necessary for companies to implement an extensive trade secret strategy, as information is only protected by the Directive if it is (i) secret, (ii) has commercial value because it is secret, and (iii) is subject to reasonable steps to keep it secret. As the Directive typically provides for general rules, such as on keeping information confidential during civil court proceedings, it will be interesting to see how EU countries implement them. They have until 9 June 2018 to do so.

The long-awaited UPC

Uncertainty followed the vote for Brexit in June 2016. However, the UK government has since confirmed that it is continuing to prepare for ratification of the Unified Patent Court Agreement and has signed the Protocol on Privileges and Immunities of the Unified Patent Court (UPC). This means that the UPC may be launched at the end of 2017, depending on other factors such as ratification by Germany. The UPC will be a single European patent court, having competence in respect of European patents and European patents with unitary effect, and its establishment will drastically change the EU patent landscape.

Guidance from Luxembourg

Depending on the European Court of Justice's workflow, 2017 may bring some important clarification in pending cases on copyright protection in the online environment (Stichting Brein/Filmspeler, Stichting Brein/Ziggo and XS4All, VCAST/R.T.I), trademark protection in light of coexistence (Irish Dairy Board), shapes (Louboutin/Van Haren) and exhaustion of rights (Schweppes), design right protection on fixed shape parts (Acacia/Porsche) as well as clarity about access to seized evidence (Synthon).

New legislation

2017 will also see media-related legislative proposals. At EU level, legislative proposals are pending in relation to copyright (the EU Copyright Reform Package) and audiovisual media services. The proposals mainly affect broadcasters and include rules on the cross-border offering of online content and commercial communications. It remains to be seen which proposals will become legislation in 2017. In addition, the European Commission has indicated that it will focus on the field of domain names and databases as well as on EU consumer and advertising law in 2017.

In the Netherlands, several amendments to the Media Decree 2008 entered into force on 1 January 2017. The amendments relate to the funding of the regional public service broadcasters and the obligation on national service broadcasters to provide subtitles. In addition, two bills relating to gambling are pending; the first bill relates to the division and sale of Holland Casino and the second bill introduces a licensing regime for online gambling.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.