MEXICO Law and Practice Contributed by: Carlos Hernandez, Roxana Aispuro and Luis Emilio Moncada, BC&B Law & Business
1. Legal Framework 1.1 Sources of Legal Protection for Trade Secrets The Federal Law on the Protection of Industrial Property (FLPIP) (published in the Mexican Offi - cial Gazette on 1 July 2020 and entered into force on 5 November 2020) is the Mexican fed - eral law applicable to trade secrets, along with certain provisions of other laws related to con - fidential information, as well as certain interna - tional treaties signed by Mexico – mainly, T-MEC (formerly the North America Free Trade Agree - ment (NAFTA)) and the WTO’s Agreement on Trade Related Aspects of Intellectual Property Rights (the “TRIPS Agreement” ), which include provisions related or similar to the provisions of the mentioned treaties. Conflicts between the content of the FLPIP and the international treaties that foresee trade secrets are resolved according to the principle of pro personae. 1.2 What Is Protectable as a Trade Secret The FLPIP does not define a trade secret as any particular type of information. Section I of Article 163 of the FLPIP defines “trade secret” as all industrial or commercial information that is kept confidential by the person who exercises legal control over it – thereby giving them or maintain - ing a competitive or economic advantage over third parties in the performance of economic activities – and for which sufficient means or systems have been adopted to preserve confi - dentiality and/or restrict access. Additionally, Article 163 of the FLPIP mentions that information that is in the public domain, information that is generally known or easily accessible to persons within the circles in which
such information is normally used, or informa - tion that must be disclosed by legal provision or court order will not be considered a trade secret. 1.3 Examples of Trade Secrets In Mexico, any type of information with indus - trial or commercial application that provides a competitive or economic advantage over third parties in the performance of economic activi - ties is considered a trade secret. Some practi - cal examples are formulations, production meth - ods, customer information, marketing strategies, product designs, processing technology, finan - cial strategies, documented internal procedures, algorithms, processes that are applied in com - puter programs, and the computer programs themselves. 1.4 Elements of Trade Secret Protection As previously mentioned in 1.2 What Is Pro- tectable as a Trade Secret , the elements nec - essary for trade secret protection are that the trade secret information is kept confidential by the person who exercises legal control over the trade secret, who must adopt sufficient means or systems to preserve the information as confi - dential and/or to restrict access to it. In practice, it is recommended that the trade secret infor - mation is contained in documents, electronic or magnetic media, optical disks, microfilms, films, or any other known or unknown medium. 1.5 Reasonable Measures In Mexico, the identification, maintenance and validation of a trade secret rely on management and legal measures that must be performed on a day-to-day basis within the company or insti - tution. As mentioned in 1.4 Elements of Trade Secret Protection , according to Article 163 of the FLPIP, the person who exercises legal control over trade secret information must demonstrate the implementation or adoption of sufficient
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