TRADE SECRETS ACT 1/2019
On 13 March 2019, Law 1/2019 of 20 February on Trade Secrets came into force, which, as its name suggests, defines, regulates and offers legal protection for these intangible assets, which constitute an essential pillar for innovation and business competitiveness.
Thus, the new Trade Secret Law aims to regulate, define and protect these intangibles and also establishes when it is understood that its obtaining, use or disclosure are illegal and what are the actions for its defence.
In the first place, the new law defines trade secrets as knowledge or information that is secret, meaning that is not generally known or easily accessible, that has a business value and with respect to which its owner has taken reasonable measures to keep it secret. Therefore, information of limited importance or that which is of general knowledge or easily accessible in the business sector is excluded.
Regarding these assets, the law provides that its owner may be both a natural person and a legal entity and that may belong in joint ownership to more than one owner and also be the object of transferring, assigning and licensing, among others.
Perhaps one of the most relevant aspects of the new rule is the definition of the acts that are considered an illicit procurement, use or disclosure, which are, among others, those that tend to access or use the trade secret without the consent of its owner or do so in breach of a confidentiality agreement.
In addition to the catalogue of infringements, there is also the possibility of prosecuting not only the person who directly carried out the unlawful act, but also those who have put it into practice for manufacture, offer or market launch of goods that have been obtained using the trade secret to their advantage, provided that they knew or should have known of the infringement and also bona fide third parties, the latter with certain particularities.
Finally, the law establishes that the owner of the secret, or even its licensee, may initiate actions against the infringer, such as diligences to verify facts, precautionary measures and civil actions for the declaration of the infringement, cessation of the infringing acts, dissemination of the sentence, compensation for damages, among others.
The deadline for the pre-registration for the actions is three years after the infringement became known.
Lastly, it should be pointed out that, although the law defines in detail the concept of both trade secrets and licit and illicit accesses, it does not establish the means of proof that could serve to prove such matter, leaving it to the owners to regulate themselves and to establish protocols so that, in the event of legal action being taken, they may serve to prove that the secret existed and had this condition, that reasonable measures had been taken to keep it secret and that a breach of it occurred. For more information on reasonable measures click here.
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