One of the main objects of the Industrial Property Law, is to protect and regulate industrial secrets, but, what is considered an industrial secret? The law establishes in its article 82, that it is all the information of industrial or commercial application that keeps a physical or moral person with confidential character, which allows him to obtain or maintain a competitive or economic advantage in front of third parties in the realization of economic activities and in respect of which he has adopted sufficient means or systems to preserve your confidentiality and restricted access to it.
This information can include from production procedures of objects for sale, manuals, products, services, technical specifications, materials, sales procedures, promotion and commercialization, business plans, manuals, database, customer list, commercial strategies or plans of sale, and in general information related to the know-how of its operations, which represent an important value, whose disclosure or exploitation by third parties would cause severe and substantial damages. The Law states that this information must be recorded in documents, electronic or magnetic media, optical discs, microfilm, films or other similar instruments.
It is very important to know and to identify that not all the information that is transmitted is considered as an industrial secret as established in article 82 third paragraph of the law that exclude the following:
- Information that is in the public domain,
- Information that is evident to a technician in the field, based on previously available information.
- Information that must be disclosed by legal provision or by court order.
It is important to clarify that it will not be considered that it enters into the public domain or that it is disclosed by legal disposition, the information that is provided to any authority by a person who holds it as an industrial secret, when it is provided for the purpose of obtaining licenses, permits, authorizations, registrations, or any other acts of authority.
MECHANISMS OF PROTECTION.
The law foresees in article 223 fractions IV, V and VI, that any disclosure to a third party, the empowerment and/or the use of information contained in an industrial secret without the consent of the person who keeps it or of its authorized user, with the purpose of obtaining an economic benefit for oneself or for a third party or for the purpose of causing harm to the person who keeps the secret, constitutes an offense of a criminal nature, which will be prosecuted by the offended party’s complaint.
Considering that the assumptions mentioned above constitute a crime, it important to protect industrial secrets through a legal instrument that allows the owner of confidential information have protection when transmitting information to another person allowing to establish guidelines to regulate its use, the foregoing with the purpose of preventing the disclosure of the information of the industrial secret that is considered confidential.
The above can be embodied in a confidentiality agreement (Non Disclosure Agreement “NDA”) between the individual or entity that keeps the secret (disclosing party) and between employees, suppliers, customers, person with whom it is intended to establish a relationship of business and in general with any other person (receiving party) which will have access to confidential information.
In addition to the confidentiality agreements, there are other protection mechanisms that can also be implemented, such as establishing in the documents legends that indicate “CONFIDENTIAL INFORMATION”; restricting the access of information to the staff of the company, authorizing only certain persons who, for the development of their work, require access to it; as well as having a mechanism of control that registers the people who have or had access to it.
The protection of industrial secrets is of vital importance especially in the real estate sector, as real estate developers have confidential information essential to carry out their operations as they are, sales strategies, costs, information of suppliers, customers, among others. Such information is considered as an industrial secret, since it allows to have a competitive advantage over other companies in the same sector, and that failure to implement adequate mechanisms of protection, the industrial secrets become susceptible to disclosure, which would generate damages losses to the developer.
In GP&H we have highly experienced attorneys, who can help develop a model of confidentiality and non-disclosure to protect industrial secrets, which allows greater protection to regulate the use and transmission of confidential information to other people, preventing this way the disclosure and disclosure of confidential information.