Trade Secrets Law in Gibraltar (BOT)
Trade Secrets Law in Gibraltar (BOT)
1. Legal Framework
Trade secrets in Gibraltar are protected under a combination of domestic law and compliance with EU-inspired legislation, particularly influenced by the EU Trade Secrets Directive (2016/943), which Gibraltar incorporated into its local law.
Key points:
Definition of trade secrets: Confidential business information that provides a competitive advantage.
Applicable law: Primarily common law principles of confidentiality and statutory provisions derived from the EU directive.
Enforcement: Civil remedies are the main form of enforcement. Criminal liability is rare and usually arises in cases of theft or industrial espionage.
2. Definition of Trade Secrets
A trade secret in Gibraltar is defined as information that:
Is secret – Not generally known or readily accessible to persons in the industry.
Has commercial value – Because it is secret, it provides an advantage over competitors.
Is subject to reasonable steps to keep it confidential – Businesses must actively protect the information through confidentiality agreements, restricted access, or other measures.
Examples include:
Manufacturing processes
Formulas or recipes
Customer lists and supplier information
Marketing strategies
Business plans
3. Misappropriation of Trade Secrets
Trade secret protection covers situations where a person:
Acquires, uses, or discloses a trade secret without consent, in a way that violates confidentiality.
Obtains the information illegally (e.g., theft, bribery, hacking, or industrial espionage).
Key Considerations:
Innocent acquisition (e.g., reverse engineering a product lawfully obtained) is not considered misappropriation.
Mere idea or general knowledge is not a trade secret; it must be specific and confidential.
4. Remedies and Enforcement
In Gibraltar, remedies for trade secret violations are primarily civil, including:
Injunctions: To prevent further use or disclosure of the trade secret.
Damages: Compensation for losses suffered due to the misappropriation.
Account of profits: The wrongdoer may be required to hand over profits gained from misuse.
Delivery up or destruction: Confiscation or destruction of materials containing trade secrets.
Courts may also grant protective measures during litigation to ensure continued confidentiality of the information.
5. Protective Measures for Businesses
Businesses in Gibraltar are expected to take reasonable steps to maintain secrecy, such as:
Using confidentiality agreements with employees, contractors, and business partners.
Limiting access to sensitive information.
Marking documents as “Confidential”.
Implementing IT security and restricted file access.
Failure to take such measures may weaken the claim that the information qualifies as a trade secret.
6. Criminal Liability
While trade secret violations are primarily civil matters in Gibraltar:
Theft, hacking, or espionage may attract criminal sanctions under Gibraltar’s criminal law.
Industrial espionage or fraudulent acquisition of trade secrets can be prosecuted as theft or fraud, depending on circumstances.
7. Trade Secrets vs Patents or Copyrights
Trade secrets: Protect confidential information indefinitely, as long as secrecy is maintained.
Patents: Require disclosure and provide protection for a fixed term (usually 20 years).
Copyrights: Protect creative works, not confidential business information.
This makes trade secrets particularly valuable for businesses that rely on secrecy rather than public registration.
8. Summary Table
| Aspect | Details |
|---|---|
| Governing Law | Common law confidentiality principles + EU Trade Secrets Directive (incorporated locally) |
| Definition | Information that is secret, commercially valuable, and subject to reasonable secrecy measures |
| Examples | Recipes, formulas, customer lists, marketing strategies, manufacturing processes |
| Misappropriation | Unauthorized acquisition, use, or disclosure |
| Remedies | Injunctions, damages, account of profits, delivery up/destruction |
| Protective Measures | Confidentiality agreements, restricted access, marking documents, IT security |
| Criminal Liability | Theft, hacking, industrial espionage may be criminally prosecuted |
| Distinction from Patents | Trade secrets rely on secrecy; patents require disclosure |
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