MEXICO Law and Practice Contributed by: Carlos Hernandez, Roxana Aispuro and Luis Emilio Moncada, BC&B Law & Business
file these claims with the available evidence; however, it is advisable that the evidence shows the infringement/criminal conduct in order to have a strong case. 5.6 Seizure Mechanisms As mentioned in 5.1 Prerequisites to Filing a Lawsuit , the owner of a trade secret owner can request preliminary injunction measures before or at the moment of filing an infringement action, including the seizure of accused products. This seizure is carried out by the MIIP and the require - ments in order to request this provisional meas - ure were listed in 5.1 Prerequisites to Filing a Lawsuit . 5.7 Obtaining Information and Evidence Note that the evidence necessary to file an action can be obtained through undercover investiga - tions and through public requests for information before any authority. These activities are usually conducted before filing an action, given that the initial brief must contain all the evidence to prove the infringement. Finally, it is possible to file as evidence a request that in this case the MIIP will order the defendant or a third party to provide certain information in order to prove the infringement . 5.8 Maintaining Secrecy While Litigating The FLPIP states that, if in any judicial or admin - istrative proceeding related to a trade secret or where any of the interested parties is required to disclose a trade secret, the authority hearing the case shall adopt the necessary measures – at the request of a party or ex officio – to prevent its unauthorised disclosure to third parties not involved in the dispute and to guarantee its con -
fidentiality. No interested party may disclose or use the industrial secret. 5.9 Defending Against Allegations of Misappropriation The main defences available in trade secret liti - gation are showing that: • the information is not considered a trade secret, as it does not have an industrial or commercial purpose; • the information is not considered a trade secret, as it does not imply the obtaining or maintaining of a competitive or economic advantage over third parties; • the owner did not adopt sufficient means or systems to preserve the confidentiality of and restrict access to the information; or • there was no misappropriation, as the FLPIP states that the following are not considered to be misappropriation: (a) the independent discovery or creation of information that is claimed as an industrial secret; (b) the observation, study, disassembly or testing of a product or object that has been made available to the public or that is lawfully in possession of the person who obtains the information, provided that the person not subject to any obli - gation of confidentiality on the industrial secret; or (c) the acquisition of the information from another person in a lawful manner. 5.10 Dispositive Motions In Mexico, the trade secret litigation proceedings do not foresee dispositive motions. 5.11 Cost of Litigation In Mexico, a trade secret litigation as an infringe - ment action filed and prosecuted before the
192 CHAMBERS.COM
Powered by FlippingBook