How to protect your intellectual property without being registered?: The Trade Secret.














Sometimes register industrial property can be counterproductive to make public that the "invention", the door opens to the infringement.

The ease of copying, the difficulty of locating offenders or enforce the legal mechanisms can make registration is not the right choice.

In these situations, the most suitable tool may be the use of contractual mechanisms to protect their property as “secreto industrial”. This is the case of the formula "Coca-Cola": remains a secret as most appropriate form of protection: if it will register, the risk of worldwide apareciesen smaller competitors offering a similar product so that "stop" would run all those “incoming” could be an unfeasible task even for a multinational like this.

The protection of an "Secreto Industrial"Basically done by contractual right and tools Unfair Competition (with the figures of the "violation of secrecy" or "inducing breach of contract" in articles 13 and 14 LCD).

That formula protection, only forces people involved in the process. If a third party came to the same result, could freely exploit.

In the dynamics of the "trade secrets" we must distinguish between:

  • Employee Relations: Employees of a company must keep the secrets relating to the operation and business of the company, obligation stemming from the time of the Labor Contract Law of 1940 in his article 77. But also, the Penal Code, in his article 279 criminalizes disclosure of secrets. In any case, other is the inclusion of a clause on trade secrets in the employment contract.
  • Relations with third: Before showing our "trade secret" will be required to sign a confidentiality agreement in which the circumstances and obligations relating to trade secrets and are indicated in the penalty that would be incurred for non-compliance. Can download a sample confidentiality agreement here.

The advantages of trade secrets are:

1.- This is free: no fees are payable.

2.- No deadline has expiration as patents.

3.- It can be transmitted through licensing of "know-how".

4.- Maintaining the patentability later, by exploiting a secret that we are not reporting, and the novelty requirement is met.

5.- Impede infringement industrial property compared to what happens with patents.

Last, add that in Europe the 28 November 2013 the Commission presented a Proposal for a Directive on the protection of trade secrets, so far not been adopted by the ordinary legislative procedure.

Consult your case by clicking here.

Leave a Reply


Set as default language
 Edit Translation

Subscribe to receive a book PDF

Just for signing up receive via email the link to download the book "How to change lawyers" en format digital.
Sign up here

Sígueme en Twitter

Subscribe me

* This field is required