On February 6, 2019 the Spanish Senate approved the draft of the Trade Secret Law with the purpose of transposing Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure.

The law will come into force 20 days after being published in the Official Gazette. No further amendments are foreseen and the current text can be found here.

Before this new law, trade secrets were regulated by article 13 of Law 3/1991 of January 10, 1991, on Unfair Competition (as last amended by Law No. 29/2009 of December 30, 2009), particularly. As a result of the new law, article 13 has been modified accordingly.

Some of the developments of the new law are:

  • Concept of trade secret: any information or knowledge, including technological, scientific, industrial, commercial, organizational or financial which is secret, which has commercial value and has been subject to reasonable measures by its holder to keep it secret.
  • Trade secret as object of property: there are explicit provisions on the coownership and transfer of rights regime (assignment and license).
  • Definition of both lawful and unlawful acquisition, use and disclosure of trade secrets.
  • Defense actions available to trade secret holders, including provisions for calculating damages and limitation period of 3 years for taking the relevant defense actions.
  • Effective tools for judicial protection in favor of trade secret holders by setting forth procedural measures such as:
    • Preservation of confidentiality of trade secrets in the course of legal proceedings.
    • Provisional and precautionary measures including fact-finding inquiries, access to evidence in possession of the counterparty or third parties and, if appropriate, measures for securing such evidence.
    • Special provisions regarding substitute guarantee in case of precautionary measures; revocation of the precautionary measures once the information is no longer secret; and measures for protecting third parties affected by precautionary measures.
  • Trade secret remains under the unfair competition jurisdiction.
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