MEXICO Trends and Developments Contributed by: Roxana Aispuro, BC&B Law & Business
The Protection of Trade Secrets in Mexico – Changes and Challenges In Mexico, any type of information with industrial or commercial application that provides a com - petitive or economic advantage over third par - ties in the performance of economic activities is considered a trade secret. It is important to know how to distinguish trade secrets from confiden - tial information. In practice, even though all trade secrets are considered confidential information, not all confidential information constitutes a trade secret. 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. Articles 163‒169 of the FLPIP regulate the provision for trade secrets. Conflicts between the content of the FLPIP and the international treaties that foresee trade secrets are resolved according to the principle of pro personae. In this sense, 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, the same article mentions that trade secret information may be stored in docu - ments, electronic or magnetic media, optical disks, microfilms, films, or any other known or unknown medium. However, information that is in the public domain, information that is gener - ally known or easily accessible to persons within the circles in which such information is normally used, or information that must be disclosed by legal provision or court order will not be consid - ered a trade secret. Therefore, the law is clear about the required cri - teria information must meet to be a trade secret, which are: • the information must be of industrial or com - mercial application; • the information must be kept confidential by the person who exercises legal control over it; • the information must allow the holder to obtain or maintain a competitive or economic advantage over third parties in the perfor - mance of economic activities; and • the holder must adopt sufficient means or systems to preserve the information as confi - dential and/or to restrict access to it. The FLPIP does not establish that the informa - tion related to a trade secret must be contained or captured in a physical medium (which the for - mer Mexican trade secrets law did). However, for enforcement and protection purposes, it is highly recommended that this information be contained in documents, electronic or magnetic media, optical disks, microfilms, films, or any other known or unknown medium. In Mexico, some practical examples of trade secrets are formulations, production methods, customer information, marketing strategies, product designs, processing technology, finan -
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