MEXICO Law and Practice Contributed by: Carlos Hernandez, Roxana Aispuro and Luis Emilio Moncada, BC&B Law & Business
FPO will prosecute and integrate the official file before such authority sends it to a criminal fed - eral court. What follows is an outline of a typical criminal action proceeding. • FPO proceeding – the criminal action starts with the filling of an initial brief (criminal complaint) before the FPO. Once the criminal complaint has been filed, an FPO prosecu - tor investigates the merits of the case and recovers all the pertinent information, suitable evidence, and expert opinions necessary to determine its prosecution. If the PFO decides to prosecute, the official file will then be sub - mitted to a criminal federal court, which will review all the evidence to determine whether the crime was committed. • Criminal federal court proceeding – as the federal criminal judge will base their decision on the file submitted by the FPO, it is cru - cial that such file is developed properly and include all suitable evidence and information in support of the IP rights-holder’s position. Criminal offences concerning trade secrets are sanctioned with imprisonment for between two and six years, as well as a fine that amounts to between UMAS1,000 and UMAS300,000 UMAS, which is equivalent to between MXN113,000 and MXN33.9 million (approximately USD5,512 to USD1.653 million). As listed in 5.9 Defending Against Allegations of Misappropriation in the context of trade secret litigation, potential defences available against a criminal charge are that: • the information is not considered a trade secret, as it does not have industrial or com - mercial 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; and • 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 is not subject to any obli - gation of confidentiality with regard to the industrial secret; or (c) the acquisition of the information from another person in a lawful manner. However, please note that these defences may differ in a civil case, as this is usually filed to obtain a compensation of damages. Finally, no specific mechanisms are foreseen in Mexico for trade secret owners to co-ordinate with law enforcement authorities. However, it is usually advisable to request meetings with Mexi - can authorities and to keep an active position when filing an infringement or criminal action in order to file all the available evidence and/or to help with the investigation.
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