Defining the object: why trade secret claims fail in Ukraine

Yaroslav Ognevyuk
AMBASSADORS, Kyiv
yognevyuk@ambassadors.uato

Most trade secret disputes involving former employees in Ukraine do not reach the stage of substantive analysis. They tend to fall away early, when the claimant has to define the object of protection. In practice, the problem is less about misappropriation and more about articulation: the information may have value, but it was never structured in a way that allows it to be asserted as a legal object.

Ukrainian courts focus on whether the claimant can point to a specific body of information that meets the criteria of a trade secret, and that question is usually decisive. In many cases, the commercial effect is obvious: competing activity appears shortly after key personnel leave. The problem is the absence of a precise definition of the underlying object. It cannot be demonstrated in a form that the court can use. This is not really about procedure. It comes down to how the business handles its information.

In sectors such as defence technology, software development and distribution models, value rarely sits in discrete assets. It lies in processes, internal logic and accumulated adjustments, and is often only partially documented. Once an employee leaves, separating protected information from professional experience becomes difficult.

Ukrainian law requires that a trade secret be identifiable, subject to restricted access and that it is distinguishable from such experience. Courts apply these criteria strictly. They look at how the business treated the information before the dispute: whether it was defined, whether access was actually controlled and whether it functioned as a separate category. If that cannot be shown, the claim usually goes no further. Directive (EU) 2016/943 follows the same logic and conditions of protection for information that is defined and subject to reasonable steps in order to be kept secret.^[1] In Ukraine, the difference shows up at the evidentiary stage, where courts apply the rule with particular rigour. 

Here, definition and evidence are inseparable. Expert analysis does more than support the claim, it often defines it. If the alleged trade secret is not tied to a document or dataset, the expert must isolate the relevant elements and assess whether they meet the criteria for protection. Ukrainian commentary and forensic practice point to a single requirement: the information must be capable of examination as a distinct object.^[2]

Courts also expect a technical comparison showing that the defined elements appear in regard to the defendant’s activities in a comparable form. The similarity of the outcome is not enough. At that point, the claim often becomes difficult to sustain. The expert may confirm that there is similar logic or comparable results, but that does not establish the use of a trade secret. In practice, the expert often defines the claim more precisely than the claimant. If the object cannot be isolated there, the case does not move forward.

Constraints tighten where the knowledge overlaps with restricted or defence-related information.^[3] Such regimes limit dissemination, and this feeds directly into litigation: the elements that capture the real source of value are often the hardest to present, while what can be disclosed may not carry the claim. By that stage, it is too late to fix the issue.

In criminal proceedings, the structure is tighter still. Expert analysis is conducted by state forensic institutions, which affects the scope and timing of such proceedings. For that reason, criminal proceedings tend to play a supporting role rather than serving as the primary enforcement route.

These disputes rarely run to judgment. Where the claim turns on operational know-how or sensitive information, parties tend to resolve matters privately, using mediation to manage evidentiary exposure. Litigation in this area is limited not because the disputes are weak, but because the information is difficult to litigate without undermining its value.

In Ukraine, trade secret protection turns on whether the information has been converted into something the court can recognise as a defined object. If that step has not been taken in advance, the claim does not develop, regardless of the commercial reality behind it.