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The Spanish Ministry of justice submitted to Congress the draft law on trade secrets, which transposes the European Union Directive on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure.
According to the draft law, information regarding a company’s business qualifies as a trade secret if it meets certain requirements, including the secret nature of such information: i.e. it must not generally be known in a relevant activity sector. In addition, such information must provide a business value and have been subject to reasonable secrecy protection measures.
The draft law states that it is unlawful to obtain a trade secret without its owner’s consent, whenever such secret is obtained through access, appropriation or unauthorized copying of documents, materials, electronic files or other.
There are various civil actions that may be brought by trade secret holders against a violation, including: trade secret violation declarations, termination of acts, seizure of infringing goods, delivery of documents, materials and files containing trade secrets to the claimant and compensation for damages in the event of fraud. Such compensation must be adequate to the damage suffered as a result of the violation of the trade secret.
Such measures may also be directed against bona fide third-party purchasers that did not or should not have known of the violation when using or disclosing a trade secret. However, such defendants may request payment of a reasonable satisfactory monetary compensation instead.
Regarding interim measures, courts may adopt certain orders against an alleged offender, including terminating the use of the trade secrets, prohibiting the producing or marketing of merchandise in violation of a trade secret, withholding it and freezing assets so as to ensure possible payment of damages.
In addition, it must also be pointed out that the draft law protects those disclosing a trade secret so as to uncover an irregularity or illegal activity in the defense of general interest.