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On February 21, 2019, Act 1/2019 of February 20 on Trade Secrets was published in the Official Gazette of the Spanish State, to come into force 20 days later. As we have already discussed on the blog, the purpose of the act is to transpose Directive (EU) 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure.

The act defines trade secrets in the broad sense, including any information and knowledge, whether technological, scientific, industrial, organizational or financial, but only when the following requirements are met:

  1. It must not be generally known or easily accessible.
  2. Its secret nature must give it real or potential value.
  3. Reasonable steps must have been taken to keep it secret.

Information that is of little importance to the person it concerns is excluded from the definition. The act also excludes experiences and powers that workers honestly acquire during the normal course of their career.

The new developments of the Spanish Trade Secrets Act include, in addition to the definition of secrets, cases in which their obtainment, use or disclosure is unlawful, the regulation on co-ownership of the secret, its transfer and possible licensing.

We particularly highlight the establishment of a specific procedure and protection of confidentiality of information in the context of court proceedings. Under this procedure, courts must take the necessary steps to protect the confidentiality of information that could be a trade secret, where it has been provided in a court proceeding (irrespective of the subject matter).

Until now, proceedings for violation of trade secrets were not brought, mainly because providing information that could be protected as a secret ran the risk of shattering its confidential nature, and therefore any competitive advantage it may have offered. The new measure dissipates that risk, as the secret is protected during court proceedings.

The new legislation replaces previous fragmented legislation, although there is no doubt that its main effect will be to make companies aware of the value of trade secrets, pushing them to value them as an essential intangible asset to gain an financial advantage in the market, as the act offers them the mechanisms they need to protect them.

Authors: Alicia Costas and Jean-Yves Teindas


This post is also available in: Español



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