A trade secret is a set of knowledge or information that is not in the public domain, which is necessary for the manufacture or commercialization of a product, for the production or provision of a good or service, or for the organization and financing of a company or a business unit or dependency, and which, therefore, provides an advantage to those who possess it.
The trade secret shall be protected as long as the requirements mentioned in Article 260 of Andean Decision 486 of 2000 are met: that it is secret, in the sense that, as a whole or in the precise configuration and assembly of its components, it is not generally known or easily accessible; that it has commercial value because it is secret; and that it has been subject to reasonable measures taken by its legitimate holder to keep it secret.
The protection of the trade secret does not require any procedure, but whoever holds the secret must take the necessary measures to prevent its disclosure and, in general, maintain the conditions of protection set forth in Article 260 of Decision 486, since the regulation does not establish a specific form of protecting the secret, but it does indicate that the holder has the burden of adopting mechanisms that are reasonable to prevent the information from being generally known and to impede easy access to it.
One of the most common methods to protect the trade secret is confidentiality clauses; these are a manifestation of the will of the parties aimed at not revealing to third parties the information they wish to protect. These clauses generate a relationship of confidentiality and produce the obligation to keep and not reveal to third parties information that the parties wish to protect.
In accordance with Decision 486, a person who exploits, communicates, or discloses a trade secret without the authorization of its legitimate holder; acquires, exploits, communicates, or discloses a trade secret through unlawful means; or exploits or communicates a trade secret obtained from a person, knowing that this person did not have the authorization to do so, shall incur unfair competition.
Law 256 of 1996, which sets forth rules on unfair competition, contemplates sanctions for persons who violate the confidentiality of a trade secret, such as the removal of the effects produced by such acts, compensation for damages, and also, the person who violates the confidentiality of a trade secret is exposed to imprisonment of two (2) to five (5) years and a fine of twenty (20) to two thousand (2000) times the current legal monthly minimum wage.