La imminent Spanish Business Secrets Law, driven by the Directive 2016/943 relating to undisclosed technical knowledge and business information, will represent a great advance in Spain (as will the respective national European laws) for the protection of business secrecy, which is positioned at the same level as the rights of Intellectual and Industrial Property (patents, trademarks, designs and copyrights) offering similar protection to them.
Now, a minimum of diligence in the matter makes necessary to have a trade secret management plan for your protection and defense, for the reasons that we will explain below.
It is necessary to emphasize that Not all confidential information has the status of a business secret. Compliance with the requirements established by the Law (secret information, with real or potential business value and the subject of reasonable measures to keep it secret) is essential for the information to have the status of business secret since when you want to assert it against a third party, the latter will try to claim that it does not have that condition and will force the owner of the same to carry out evidentiary activity to the contrary.
They will not only be considered violators those who have that responsibility for their own acts of illegal obtaining, use and disclosure, but also the law establishes such responsibility on an objective basis for those who knew or, in such circumstances, should know of the illicit origin, and even an "ultra objective" responsibility ” since intermediaries (manufacturers, importers or those who market) in good faith also have responsibility when they carry out their activity and the product or service infringes the business secret of a third party. This emphasizes the need to carry out processes of due diligence of company and the signing of contracts transferring to suppliers the responsibilities derived from violations of business secrets.
Linking with the above, we can affirm that it is a Law that protects the holders of business secrets, providing sufficient legal security to act in the market. And, therefore, by complying with the new Law, companies that correctly manage secrets will have various legal mechanisms to prevent third parties from infringing their business secrets.
Finally, we cannot fail to point out that Correct management of trade secrets reduces the risk of leakage of trade secrets. by employees and third parties, and represents added value for their sales or licensing processes.
Authors: Javier Fernandez-Lasquetty y Cristina Espín
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