Trade secrets legal regime – an updated overview

The legal regime for trade secrets and confidential information that protects valuable secret commercial information from misappropriation by third parties is the main alternative to the protection granted by the patent system.

In Argentina, confidential information and trade secrets are protected by:

• Section 39.2 of the Agreement on Trade-Related Aspects of Intellectual Property Rights;
• Section 156 of the Argentine Penal Code;
• Law 24,766 (the Confidentiality Law); and
• the recently passed Emergency Decree 274/2019, which regulates different unfair competition aspects.

The decree, which establishes a comprehensive and systematised regulation of unfair competition, constitutes a relevant step, since within the market economy framework (mostly the knowledge economy), the vital role of the unfair competition legal regime, including adequate secrets protection, is widely recognised.

As previously explained, the decree establishes a series of provisions that are highly valued in the IP field, such as a detailed regulation of comparative advertising, provisions referring to names of origin, secrecy and data exclusivity.

Specifically in relation to secrecy, Section 10(j) of the decree sets out as following:

SECTION 10: Particulars. The acts listed below shall be considered acts of unfair competition:

j) Violation of secrets: disclosing or exploiting, without the authorization of the holder, trade secrets of third parties accessed either lawfully, but under duty of confidentiality, or unlawfully. For these purposes, the acquisition of secrets through espionage or similar procedures, shall be considered unfair, notwithstanding the penalties that might be established by other rules.

The violation should be effected with the aim of seeking own or third party's advantage, or damaging the holder of the secret.

For the purposes of this case, the approval of the registration or marketing authorization established in reliance of the procedures of approval for similar products established in Section 5 of Law No. 24,766 by the local administrative authority, shall not be considered an act of unfair competition.

For further information on this topic please contact Daniel R Zuccherino at Obligado & Cia by telephone (+54 11 4114 1100) or email (dzuccherino@obligado.com.ar). The Obligado & Cia website can be accessed at www.obligado.com.