Article 1.1 of the Law 1/2019, of February 20, on Business Secrets A trade secret is any information or knowledge, including technological, scientific, industrial, commercial, organizational or financial, which meets the following conditions: it is secret, in the sense that it is not generally known to, or easily accessible by, persons belonging to the circles in which the type of information or knowledge in question is normally used; it has business value, whether actual or potential, exactly because it is secret; and it has been the subject of reasonable measures by its owner to keep it secret .
The business secret is based on data and information, both confidential, which have a special interest for the company. It is essential that this information gives its owner a competitive advantage and that it is always protected from a series of measures that keep it secret.
If we make a comparison with other areas of law such as intellectual property, we can observe notable differences that call our attention.
The business secret is not acquired by means of the timely registration, but it is the measures that are being talked about that cause the information to be considered secret.
The business secret is not limited to a specific territory and does not have a defined duration. With respect to the latter, its duration will be prolonged as much as the holder is interested in maintaining the secret nature of the business information.
To conclude with the description of the nature of the concept that is being studied, it is necessary to point out the vulnerability of the right conferred by the trade secret. And this is so because of the difficulty involved in controlling it.
In today’s corporate world, where information is an enormously asset, it is even more urgent to protect that asset so that the negative impact of an information leak is as small as possible. It is precisely this current situation and its technological advances that make one especially wary of protecting information.
Law 1/2019, of February 20, on Business Secrets (hereinafter LSE) is the rule by which the European Union Directive 2016/943, on the protection of undisclosed technical knowledge and business information (trade secrets) against unlawful obtaining, use and disclosure, is incorporated into our legal system.
This regulation has been created with two objectives: the first is that the competitive market at European level that is based on the secrecy of information enjoys the appropriate protection; and the second is to improve the conditions and framework for the development and exploitation of innovation and knowledge transfer in the internal market.
The type of information to be protected can be of very different nature, being configured as an immaterial good that allows its legitimate owner to either exploit it or transmit it according to his also legitimate interests.
The acts that are followed and punished in this context are: the acts of obtaining, using and disclosing information (Article 3 LSE), as well as those of exploiting goods that by their nature can benefit from that competitive advantage provided by the trade secret (Article 3.4 LSE).
The business secret gives a series of advantages for the company. It will be the businessman who will value the information he wants to protect, depending on the importance he wants to attribute to it. As we have pointed out previously, the businessman will be able to commercialize this information always with the opportune duty of diligence and prudence. The trade secret is an intangible asset of great value to the company.
It is crucial that business secrecy maintains that character to maintain the competitive advantage it provides. We must be aware that the characteristics of the current labor market, with a high rotation of personnel, may endanger that information that is so eagerly protected. In addition, attention should not be paid to corporate espionage.
As a conclusion and based on all the above, we can say that the business secret, will be when the information is concerning the company, not common. It must be secret, only available to its owner and whoever he considers appropriate. This information that is protected to be secret must be a competitive advantage for the company that owns it. All relevant actions must be carried out to keep the business information secret.
From Casas Asin as a law firm specialized in Intellectual Property we are able to offer you a complete and personalized advice on the procedure to follow in order to keep your information protected in the best possible way.