Intellectual Property / 24 Feb 2020

Borenius advised Heraeus in a complex trade secret dispute in the Market Court

We successfully advised Heraeus before the Finnish Market Court in a complex trade secret dispute.

Borenius represented the applicants, a European market leader in bone cement, Heraeus Medical GmbH and its Nordic subsidiary, in a dispute against Zimmer Biomet Finland Oy regarding unfair trade practices.  The applicants claimed for an injunction under the Finnish Unfair Business Practices Act on the grounds that the respondent had imported and distributed bone cement products, which had been developed and manufactured by illicitly using the applicants’ trade secrets that had been revealed to the respondent during the parties’ earlier cooperation. The trade secrets had been developed already in the 1950s for the production of high quality bone cement that is used in, for example, knee and hip operations.

An extensive oral hearing was held in 2017 that involved, for example, the assessment of evidence received though US discovery proceedings. An additional oral hearing was held in 2018 due to new crucial evidence that was earlier barred against use by a German court decision.

The Finnish Market Court handed down its ruling on 21 January 2020. The Market Court held that the respondent was aware that the bone cement products they marketed and sold had been developed by making use of the applicants’ trade secrets, and therefore, the marketing and selling of the bone cement products violated good business practices. The Market Court ordered an injunction with a threat of a fine with effect as of 1 March 2020 prohibiting the respondent from marketing and selling certain bone cement products. The decision is not yet final.

The complexity and involvement of trade secrets that were crucial for the applicants’ business make this a high profile case that has implications outside its context.  The case also involved extensive cross-border dimension as it has been litigated in parallel proceedings in several countries including the US, Germany, Norway, Denmark, the UK, the Netherlands, Austria and France.

The lengthy proceedings together with the thorough reasoning of the Market Court emphasise the complexity of trade secret cases where the events under assessment date back many decades and involve several countries.

The case was handled in cooperation with Klinkert Rechtsanwälte PartGmbB who acts as a coordinator for parallel proceedings in more than ten different countries.

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