Trade Secret Litigation Defense — from Proof to Judgment
A trade-secret dispute in court is resolved by a chain of four norms: first it must be established whether a protected secret exists at all (Article 1105); then the unlawfulness of the breach (Article 992); then the measure of damages (Article 414); and finally the penalty as the pre-agreed price of breach (Article 418). This page explains the chain from the perspective of both sides of the dispute.
Qualifying the Secret — Article 1105
An entrepreneur who possesses a manufacturing or commercial secret — know-how, constituting technological, organizational or commercial information of particular importance, evidenced by the necessary and sufficient measures taken for keeping it secret — has an exclusive right to this information. The first question of the litigation is precisely this qualification: the claimant must prove both the particular importance of the information and the necessity and sufficiency of the secrecy measures — access regimes, restriction of availability, the obligations of employees, and evidence of who had access to the information and when. Without either component the secret does not exist, and the claim loses its foundation.
The Tort Claim — Article 992
A person who, by unlawful, intentional or negligent action, causes damage to another person is obliged to compensate it. In a secret dispute this norm is the basis of the claim: the unlawfulness — the unlawful acquisition or use of the information — must be established by the claimant, and the form of fault added to it: intention or negligence. Liability is built on these two elements, and it is here that the main battle of evidence is fought — the source, the access and the fact of use.
The range of fault also matters: damage caused by intentional and by negligent action is equally compensable, so a denial of intent alone does not defeat the claim — what is decisive is the unlawfulness of the action and its causal link to the disclosure.
The Measure of Damages — Article 414
In determining the amount of damage, the interest of the creditor against due performance is to be taken into account; the time and place of performance of the contract must be considered in establishing the amount. In a secret dispute this calculation is written with two supports: what the information would have yielded under lawful use, and in what time and space that interest was valued. The precision of the measure decides the amount of the judgment, which is why the computation must rest on documentary foundations from the very start of the dispute.