BRAZIL Law and Practice Contributed by: Fabiano de Bem da Rocha, Gustavo Bahuschewskyj Correa, Kamille Trindade Machado and Milton Lucídio Leão Barcellos, Leão Intellectual Property
disclosure/use of confidential business information (Article 195, items XI and XII), and the related civil claim for damages and injunctive relief (Article 209); • contractual and tort principles (eg, breach of con- tract and civil liability); and • Brazil’s international obligations, notably TRIPS Article 39. In practice, a trade secret covers technical, commer- cial or strategic information that: • is not generally known or readily accessible to competitors; • has commercial value because it is secret; and • is subject to reasonable measures to keep it con- fidential (eg, contractual restrictions and access controls). Typical examples include formulas, manufacturing processes, source code, technical specifications, customer/supplier data, pricing and go-to market strategies. 5.2 Reasonable Measures and Confidentiality There is no fixed statutory checklist of “reasonable measures”, but owners should be able to show con- sistent efforts to preserve secrecy – eg, non-disclosure agreements (NDAs)/confidentiality clauses, “need to know” access, information classification, technical controls, training and documented offboarding/return- of-materials obligations. Disclosure to employees, contractors or business partners does not eliminate protection if it is limited to what is necessary and the recipient is bound by clear confidentiality and non-use obligations. Once the information becomes public (including by uncon- trolled disclosure), it will generally cease to qualify as a trade secret, although contractual remedies may still be available depending on the circumstances. 5.3 Misappropriation of Trade Secrets Misappropriation is typically framed as the unauthor- ised disclosure, exploitation or use of confidential business information, particularly where the person had access through:
• an employment or contractual relationship, includ- ing after termination; or • unlawful means (including fraud). These scenarios are expressly addressed as unfair competition crimes under Article 195, XI and XII of the Industrial Property Law. In employee and competitor disputes, claimants com- monly focus on proving: • the confidential nature of the information; • access (eg, role-based access logs, emails, down- loads, departures); • a breach of duty (contractual and/or statutory); and • use or risk of use. In joint ventures and R&D collaborations, the outcome often turns on the contract (ownership, permitted use, scope of confidentiality) and on whether the recipient stayed within the agreed purpose. 5.4 Duration and Loss of Protection Trade secret protection can last indefinitely, as long as the information remains secret and retains com- mercial value. There is no registration and no fixed statutory term. Authorised disclosure under confidentiality restric- tions (eg, to suppliers or licensees) does not normally destroy secrecy. By contrast, uncontrolled or public disclosure generally ends trade secret status. If dis- closure occurs due to a breach, the holder may still pursue contractual/statutory remedies against the breaching party, but the information may become dif- ficult to protect against third parties once it is in the public domain. 5.5 Enforcement and Remedies Civil remedies typically include injunctions to stop use/disclosure, search-and-seizure or evidence pres- ervation measures where appropriate, and damages. The Industrial Property Law 9,279/96 also supports civil indemnification for losses caused by unfair com- petition acts (Article 209). Criminal sanctions may apply in trade secret theft scenarios framed as unfair competition crimes under
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