Driven by globalization and the progressive business development that has been implemented in recent times, greater awareness has been created about the balance on that scale facing responsibility, economic freedom, freedom of enterprise, and free competition among entrepreneurs.
In this way, they have become immersed in generating greater protection for the creations developed within companies, establishing an integration of industrial property within the business legal framework in order to protect the domain they hold over their creative activity, both concerning the intellectual aspect and the economic or patrimonial aspect.
In relation to this, and in order to address trade secrets, reference is made to Article 260 of Decision 486 of 2000, which establishes: “Any undisclosed information that a natural or legal person legitimately possesses, which may be used in some productive, industrial, or commercial activity and which is susceptible to being transmitted to a third party, shall be considered a trade secret (…).” Bearing this in mind, whoever legitimately holds the trade secret must comply with the sphere of protection, extending even beyond the Colombian legal system.
Notwithstanding the foregoing, it is important to add that the trade secret must meet the following requirements:
– That it is not generally known or easily accessible to those who are in the circles that normally handle that type of information.
– It must have commercial value because it is secret.
– Its legitimate holder must have adopted reasonable measures to keep it secret.
Bearing in mind its regulation, reference is made to what has been pronounced on different occasions regarding trade secrets by the Superintendence of Industry and Commerce, as that set of data of a commercial, industrial, or productive nature, over which there is a reservation in its disclosure, where its holder has the quality to determine and decide the transfer of its ownership to a third party, in which case a duty of confidentiality will fall upon him, under penalty of incurring conduct susceptible to being sanctioned judicially and administratively.
Now then, the protection generated against trade secrets is of utmost importance, since, as has been well mentioned, it is that knowledge at the business level that groups together procedures, methods, formulas, experiences, or skills, of a secret nature that generates economic value. In this way, great protection is generated, regulating the acts or actions that generate direct or indirect violation of the trade secret, that is, those disclosures, acquisitions, or uses that determine a contradiction to fair trade practices, acquiring it under dishonest acts, as mentioned in Article 262 of Decision 486 of 2000:
“a) exploit, without authorization from its legitimate holder, a trade secret that has been accessed subject to an obligation of confidentiality resulting from a contractual or labor relationship
b) communicate or disclose, without authorization from its legitimate holder, the trade secret referred to in paragraph a) with the intention of obtaining profit for oneself or a third party or of harming said holder
c) acquire a trade secret by illicit means or contrary to honest commercial practices; d) exploit, communicate, or disclose a trade secret that has been acquired by the means referred to in paragraph c).
e) exploit a trade secret that has been obtained from another person knowing, or having reason to know, that the person who communicated it acquired the secret by the means referred to in paragraph c), or that they did not have authorization from its legitimate holder to communicate it.
f) communicate or disclose the trade secret obtained in accordance with paragraph e), for the benefit of oneself or a third party, or to harm the legitimate holder of the trade secret.”
Notwithstanding the foregoing, in Colombia, free competition is regulated by means of Law 256 of 1996, determining in which cases the violation of trade secrets is considered.
In conclusion, the importance that falls on the management of trade secrets, both for natural or legal persons, is established in the access granted to third parties over this information, whether due to a contractual or labor relationship, that is, incorporating into the legal acts that involve the disclosure of trade secrets, clauses that evidence the due protection that falls on it, or entering into confidentiality agreements.
Prepared by: Paula Andrea Flórez. Consulting Attorney.