Trade Secrets Act defines
such secrets as the set of information and secrets that cannot be made available to the general public and that are essential for the manufacture and marketing of products.
Today we delve into this standard and the novelties it has introduced to know how it is possible to protect the activity of Spanish companies today.
The Importance of Revealing Trade Secrets
Business secrets influence the organization of society and provide competitive advantages if disclosed. Therefore, companies have legal tools that protect their information of greater value.
If such knowledge becomes known to competitors, it could have the consequence that an effort in innovation proves futile. Thus, the importance of revealing business secrets is undoubted.
The economic effects of such a disclosure could lead to up to a 30% reduction in turnover.
Currently, risks have increased with the evolution of technology and globalization,as business secrets are more exposed.
The Fundamentals of the Trade Secrets Act
As for the protection of business secrets,the law understands it as a broad concept. This is because it will cover any type of information considered secret, which must be unknown to the public and have a commercial value given by its own secret nature.
Also, according to the Law on Business Secrets, these must have been subject to measures to maintain their confidential nature and will have to be able to prove it in judicial proceedings.
Kinds of information that can be considered secret
A company’s confidential information is extensive.
It can range from supplier or customer listings to know-how or industrial know-how.
Also, it may include business plans, how the company works internally,or any other type of knowledge with economic value due to the fact of being unknown and being defended by society.
Are all acts of revelation illegal?
Not all acts of disclosure or use of a trade secret are illegal,for example, in the event that it is discovered through an independent investigation.
That is, although the business secret is protected by its law, it does not provide the exclusivity that gives, for example, patents.
Likewise, “reverse engineering” or, in other words, the discovery of information by the test, study or observation of a product that is available to the person carrying out this research or to the public is lawful.
Legal actions against the discovery of business secrets
The law protects business secrets through a large catalogue of legal actions similar to those of patent secrets. They are important when establishing compensation for damages.
Legal actions shall be brought before the Commercial Court within three years of
the date on which the violation becomes known.
Requirements for information to be considered a trade secret
As has been said, the first requirement for information to be considered a ‘trade secret’ is that it be confidential.
This means that it should not be known or accessible to those who are usually in the environment in which the information is used.
In addition, it must be information of relevant interest and have been the subject of important measures to keep it secret,by those who control the information.
It should be noted that, in order for
a breach of a trade secret
to have been considered to have been committed, it does not need to have been effectively disclosed or exploited: there will be a real risk that this will happen.
Types of Trade Secrets
There are two types of trade secrets, commercial and industrial.
#1 – Trade Secret
Trade secrets refer to any kind of knowledge that has consequences on the nature or habitual life of society. Therefore, it will have value for her and competitors will want to know them.
#2 – Industrial Business Secret
This secret focuses on technical information about processes, products or ideas. It has an obvious competitive value and therefore entrepreneurs or professionals want to keep them hidden.
It shall be deemed that access to secret business information will be illegitimate if it is carried out through espionage or some similar method, as well as the inducement of contractual infringement in order to profit from it or to harm the holder of the business secret.
Measures to protect trade secrets
The measures that can be taken are comprehensive.
Among them is the signing of confidentiality agreements or the classification, identification and deposit of knowledge in physical places that have restricted access with good security measures.
Others are user policies, antivirus, and organizational and management measures.
One of the great
the Trade Secrets Act is that it does not subject them to limits of temporality or registration costs for their protection, in addition to its effect being immediate.
Therefore, it is a resource of great value in business policy,although it should always be used with a good strategy and advice.