Your competitive advantage deserves legal protection

What Qualifies as a Trade Secret?

Ley 1/2019 (the Spanish Trade Secrets Act), which transposed EU Directive 2016/943, defines a trade secret as any information that is: (1) not generally known or readily accessible to persons in the relevant sector — secrecy; (2) has commercial value because it is secret — commercial value; and (3) has been subject to reasonable measures to keep it confidential.

The breadth is intentional. Technical data, manufacturing processes, formulas, software code, customer and supplier lists, business strategies, pricing models, and market analyses all qualify — provided all three elements are met simultaneously.

The Reasonable Measures Requirement

This element is often dispositive in litigation. Courts assess whether the holder took steps proportionate to the value and sensitivity of the information:

• Contractual measures: NDAs with employees, contractors, suppliers, and investors; post-contractual confidentiality clauses; non-disclosure provisions in licensing agreements
• Procedural measures: classified-information registers, need-to-know access protocols, clear marking of confidential documents
• Technical measures: password protection, access-log systems, encryption of stored and transmitted data, physical-security controls

We audit your current practices and design a documented framework that will withstand judicial scrutiny if you ever need to enforce your rights.

Civil and Criminal Remedies

Civil Remedies — Ley 1/2019

• Injunction to cease acquisition, use, or disclosure of the trade secret
• Seizure of infringing goods and materials, including digital media
• Destruction or return of documents containing the secret
• Full damages: actual losses + lost profits + moral harm; where wilful infringement is proven, courts may award the royalty that would have been due under a licence
• Publication of judgment in trade publications at the infringer’s cost

Urgent provisional measures are available within days of filing and without prior notice to the defendant where urgency is demonstrated.

Criminal Remedies — Arts. 278–280 Penal Code

Industrial espionage and betrayal of trade secrets by employees or collaborators carries up to two years’ imprisonment (basic offence) and up to three years where the offender is an employee who exploits or reveals the secret. Criminal proceedings run in parallel with civil actions and often produce faster investigative results — including telephone intercepts and evidence orders — that strengthen the civil case.

Employee and Post-Employment Issues

Trade-secret protection does not conflict with employees’ rights to use the skills and general knowledge they acquire during employment. What is protected is specific, documented confidential information that the employer has taken steps to keep secret.

Post-employment NDAs combined with non-compete clauses (enforceable for up to two years for managerial staff under Art. 21 of the Workers’ Statute, subject to proportionate compensation) provide the strongest framework. We draft, review, and enforce these provisions, and we also defend employees who receive unfounded demands that would effectively prevent them from working in their sector.

Defending Against Trade-Secret Claims

Companies accused of misappropriating trade secrets face injunctions that can shut down production lines within days. We provide immediate defensive advice: assessing whether the information genuinely qualifies as a trade secret, identifying lawful acquisition paths (reverse engineering, independent development), and bringing counterclaims for wrongful injunction where the claimant cannot satisfy the three-element test.

This service is part of our intellectual property and commercial legal practice.