Trade Secrets Law in Mexico
Mexico's trade secrets are primarily governed by the Federal Law for the Protection of Industrial Property (Ley Federal de Protección a la Propiedad Industrial), which came into effect on November 5, 2020. This law replaced the previous Industrial Property Law and aligns with international standards, including the United States-Mexico-Canada Agreement (USMCA)
🔐 Definition of Trade Secrets
Under Article 163 of the Federal Law, a trade secret is defined as:
“Any information of industrial or commercial application kept by the person exercising legal control over it on a confidential basis, that implies obtaining or maintaining a competitive or economic advantage over third parties in the conduct of economic activities and in respect of which the person has undertaken sufficient means or mechanisms to maintain the restricted access and confidentiality of the information.”
This information can exist in various forms, including documents, electronic or magnetic media, optical discs, microfilms, films, or any other known or future medium.
⚖️ Misappropriation and Exceptions
The law prohibits the misappropriation of trade secrets, defined as the unlawful acquisition, use, or disclosure of a trade secret in a manner contrary to industry standards, practices, or usages, implying unfair competition. However, certain exceptions exist:
Independent Discovery or Creation: If the information is independently discovered or created.
Reverse Engineering: If the information is obtained through lawful observation, study, disassembly, or testing of a product or object available to the public or legally in possession of the person obtaining the information, provided that the information is not subject to any confidentiality obligation.
Lawful Acquisition: If the information is lawfully acquired from another person without a confidentiality obligation or without knowledge that the information was a trade secret.(Holland & Knight)
These exceptions are outlined in Article 164 of the Federal Law.(WIPO)
🛡️ Protection Measures
To maintain trade secret protection, the holder must adopt sufficient measures to preserve its confidentiality and restrict access. The law does not specify particular measures but emphasizes the necessity of such actions.(
⚖️ Enforcement and Remedies
Infringements of trade secrets can lead to:
Civil Actions: Claims for damages and injunctions.
Administrative Actions: Fines imposed by the Mexican Institute of Industrial Property (IMPI).
Criminal Offenses: Penalties including imprisonment for those found guilty of misappropriation.
Article 167 of the Federal Law specifies that individuals or entities that acquire trade secrets through unlawful means or with the intent to use them for economic gain or to harm the rightful owner can be held liable.
🏛️ Role of IMPI
The Mexican Institute of Industrial Property (IMPI) is the authority responsible for enforcing industrial property rights, including trade secrets. It has the power to initiate proceedings, impose sanctions, and provide technical opinions on matters related to industrial property.
📝 Confidentiality Agreements
Parties can enter into confidentiality agreements to protect trade secrets. These agreements should clearly define the confidential information, the obligations of the parties, and the duration of confidentiality. Breach of such agreements can lead to civil liability and claims for damages.
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