9Trade secrets
9.1 What is a trade secret?
Although there are many similarities with intellectual property rights, a trade secret does not fall within this category. The intangible asset which is protected is information.
Information, relating to any part of the business (including technological, scientific, industrial, commercial, organizational or financial areas), may constitute a trade secret, provided it meets three requirements:
- It must be secret, meaning that it is not generally known among or readily accessible to persons within the circles that normally deal with it.
- It must have commercial value because it is secret.
- Reasonable steps must be adopted by its holder to keep it secret.
The protection of trade secrets is regulated in the Trade Secrets Law 1/2019, of February 20, 2019 (TSL).
9.2 How long does a trade secret last?
Since it is a de facto right it lasts indefinitely, as long as the information remains secret.
9.3 How can sensitive business information be protected?
Among other measures, it is important that companies have an adequate level of cybersecurity protection, that they implement appropriate confidentiality obligations in their contracts with employees and third parties (manufacturers, suppliers, distributors, etc.) and that they establish restrictions on staff access to restricted areas where confidential documents are kept.
9.4 What steps are considered unlawful under the Trade Secrets Law?
The acquisition of a trade secret without the consent of its holder is considered unlawful when it is carried out by unauthorized access to, appropriation of, or copying of any medium containing the trade secret or from which the trade secret can be deduced; or any other conduct which is considered contrary to honest commercial practices.
Additionally, the use or disclosure of a trade secret will be considered unlawful whenever carried out without the consent of the trade secret holder, if the trade secret had been acquired unlawfully or with a breach of a confidentiality or similar duty.
Moreover, the TSL prohibits the production, offering, placing on the market of products that significantly benefit from trade secrets unlawfully acquired.
9.5 Is a trade secret transferable?
Yes. Like intellectual property rights, trade secrets may be assigned and licensed on an exclusive or non-exclusive basis.
