MEXICO Law and Practice Contributed by: Eduardo Kleinberg, Adolfo Athié, Claudio Ulloa and Juan Carlos Hernández, Basham, Ringe y Correa S.C.
fines, seizure and destruction of infringing goods, and compensation for damages. Mexican law also pro- vides for interim measures, such as provisional seizure of goods or suspension of allegedly infringing activi- ties, as well as border measures through customs authorities to prevent the import or export of infring- ing products. In practice, the grant of such measures generally requires the posting of a bond. In the case of trade dress, infringement occurs when a third party reproduces or uses, without authorisation, a protected trade dress that is likely to cause confu- sion as to commercial origin. Enforcement is primarily administrative before IMPI. Remedies include injunctions, administrative fines, seizure of infringing products, and border enforce- ment measures through customs authorities. As with trade marks, claims for damages must be pursued separately before civil courts once an administrative infringement decision has been obtained. 4.5 Functionality and Technical Features If the appearance of a product is solely to achieve a technical result, or if the feature must be repro- duced exactly for mechanical assembly or connec- tion with another product, it is considered functional and excluded from design protection. A design can be refused or invalidated for the technical necessity. With respect to partial designs, these are express- ly accepted under Mexican law. Protection may be granted to designs embodied in a part of a product, as well as to designs consisting of a form intended to enable the assembly or multiple interconnections of products, or their connection within a modular sys- tem, provided that the design meets the requirements of novelty and industrial applicability.
or misuse of confidential information. General princi- ples of civil liability may also apply in cases involving breach of confidentiality obligations. Trade secrets are defined as any information that is lawfully controlled by a person or entity, kept confi- dential, not generally known or readily accessible to persons within the relevant industrial or commercial sectors, and that derives actual or potential economic value from being secret. Such information must be subject to reasonable measures or systems designed to maintain its confidentiality and restrict access. Trade secrets may include technical, commercial, financial, or industrial information, and may be con- tained in any physical or digital medium, including documents, electronic or magnetic files, optical disks, microfilm, films, or any other existing or future storage format. For protection to apply, it must be established that: • the information is not generally known or readily accessible; • it has commercial value precisely because it is secret; • it is lawfully controlled by the person asserting protection; and • reasonable measures have been adopted by its lawful controller to preserve its confidentiality. 5.2 Reasonable Measures and Confidentiality The FLPIP does not establish a closed or exhaus- tive list of specific measures to maintain trade secret protection. Instead, the assessment is made on a case-by-case basis, depending on the nature of the information, the industry, and the circumstances of disclosure, among other relevant factors. In practice, owners are expected to adopt reasonable measures to preserve confidentiality. These typically include notifying employees that the information is confidential and constitutes a trade secret, limiting access strictly to personnel who need it for the per- formance of their duties, and implementing contrac- tual and/or technical safeguards. Disclosure should be restricted to what is strictly necessary for the fulfilment of employees’ or contractors’ obligations.
5. Trade Secrets 5.1 Legal Framework and Protectable Information
The legal framework governing trade secret protec- tion in Mexico is primarily set out in the FLPIP and its regulations, as well as in the Criminal Code provisions applicable to unlawful disclosure, misappropriation,
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