A trade secret is considered any information or knowledge, including technological, scientific, industrial, commercial, organizational, or financial, that meets the following conditions:
a) To be secret, meaning that, as a whole or in the specific configuration and assembly of its components, it is not generally known by people within the circles where such information or knowledge is typically used, nor is it easily accessible to them;
b) To have commercial value,either actual or potential, precisely because it is secret, and
c) To have been the subject of reasonable measures by its owner to keep it secret.
They can consist of formulas, processes, or manufacturing or marketing techniques, plans, prototypes, marketing or planning strategies, database listings, software, source code, algorithms, and any other information intended to be kept confidential.
Trade secrets can belong to any individual or legal entity that legitimately exercises control over them, either individually or jointly, and they can be transferred, assigned, and licensed for use and exploitation.
To protect trade secrets, it is necessary to create a protocol that includes the content of the trade secrets and the conditions and permissions for accessing them.
It is also advisable to have confidentiality or non-disclosure agreements (NDAs); establish a clear and written policy on information handling; use security measures such as passwords and encryption; and train individuals who may have access to the trade secrets about their importance and the consequences of disclosure.
Infringement.
The infringement of trade secrets involves unauthorized access, appropriation, or copying of documents, objects, materials, substances, electronic files, or other mediums that contain the trade secret or from which it can be deduced, or actions that are contrary to fair commercial practices.
Protection and defense.
Through the exercise of cease and desist actions; prohibition of manufacturing, offering, marketing, or use; import and export bans; seizure of goods and means; recovery and ownership attribution of infringing goods; compensation for damages—which may include compensation for moral harm; reimbursement of incurred investigation costs; and publication of the judgment.
Procedural measures.
Judicial measures include conducting preliminary fact-finding procedures before filing the lawsuit to substantiate the claim for damages, and the adoption of precautionary measures to temporarily halt the infringement.
Legal Regime.
- Law 1/2019, of February 20, on Trade Secrets, was enacted to transpose Directive (EU) 2016/943 of the European Parliament and Council of June 8, 2016, concerning the protection of undisclosed technical knowledge and business information (trade secrets) against their unlawful acquisition, use, and disclosure.
- Law 3/1991, of January 10, on Unfair Competition, classifies the violation of trade secrets as an unfair practice governed by the Unfair Competition Act (LSE).
- The Penal Code, Organic Law 10/1995 of November 23, regulates offenses related to the discovery and disclosure of trade secrets within the crimes related to the market and consumers.
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