A product formula, a manufacturing process, a customer list, cost structures, the commercial method a company took years to perfect: much of a company’s value is not registered anywhere. In Colombia that information is protected as a trade secret, with no registration and no fee, but only if the company has done what is needed to keep it secret. We are trade secret attorneys in Colombia: we help you identify which information qualifies, protect it with confidentiality agreements and clauses in employment and commercial contracts, and act before the Superintendence of Industry and Commerce (SIC) when someone discloses or uses it without authorisation.
What a trade secret is under Colombian law
Under Article 260 of Andean Decision 486, a trade secret is any undisclosed information lawfully held by a person or company that can be used in a productive, industrial or commercial activity and can be transferred to a third party, provided it is secret, meaning not generally known or easily accessible to those who normally handle that kind of information; it has commercial value because it is secret; and its lawful holder has taken reasonable measures to keep it secret. It may relate to products, production methods or processes, or means of distribution and marketing.
The requirement most companies fail
The first two requirements usually take care of themselves. The third is where claims are lost: if the company took no reasonable measures to keep the information confidential, there is no trade secret to defend. In practice those measures are signed confidentiality agreements, confidentiality clauses in employment and supplier contracts, restricted access, marking documents as confidential and keeping track of who accesses what. Protection has no fixed term: under Article 263 it lasts as long as the conditions of Article 260 are met.
Examples of trade secrets
A recipe or product formula, a production process that lowers costs, a customer list with its commercial terms, pricing and margin structures, expansion plans, unpublished source code, and research results that have not yet been patented. All of them can meet the first requirement; the real question is whether the company can prove it protected them.
Employees, partners and licensees
Under Article 265, anyone who has access to a trade secret through their work, position, profession or business relationship, and who has been warned of its confidentiality, must refrain from using or disclosing it without justified cause and without consent. The warning is the key: confidentiality agreements should be signed on joining, not when suspicions arise. Under Article 264, a trade secret can also be transferred or licensed, and technology, technical assistance and engineering agreements may include confidentiality clauses, provided they do not breach competition law. This is the legal basis for know-how in franchising and technology transfer.
What to do if your trade secret is misused
Disclosing or exploiting a trade secret without authorisation, or acquiring it through espionage, is an act of unfair competition under Article 16 of Law 256 of 1996. Under Article 24 of the General Code of Procedure, the SIC has judicial powers to hear unfair competition cases, and the claimant can seek a declaration that the conduct is unlawful, an order to remove its effects, damages and interim measures to stop the use of the information during the proceedings. Under Article 23 of Law 256 of 1996, the action is time-barred two years after the claimant learns who committed the act and, in any event, three years after the act. See our page on unfair competition.
Trade secret or patent
They are opposite strategies. A patent protects for twenty years in exchange for publishing the invention; a trade secret protects with no time limit in exchange for never publishing it. Secrecy works when the advantage cannot be deduced from the product sold, such as a formula or an internal process. If the invention can be copied by looking at the product, secrecy is not enough.
How we work
We start with an inventory of which information has value because it is secret and who has access to it. We then review employment, supplier and partner contracts to make sure their confidentiality clauses would hold up in court, and draft the agreements that are missing. If the information has already been disclosed, we assess the evidence, the deadlines and the interim measures available before filing. With more than 20 years of practice before the SIC, we know that trade secret cases are won or lost by what the company did before the dispute.
Frequently asked questions
Do trade secrets need to be registered in Colombia?
No. Trade secrets are not registered and no fee is paid; they are protected as long as the information remains secret and the company keeps reasonable measures in place. The SIC intervenes when an unfair competition claim is filed.
What happens if a former employee takes confidential information?
If the information was a trade secret and the employee had been warned of its confidentiality, using or disclosing it without authorisation is unfair competition and can be brought before the SIC, with interim measures and damages.
How long does trade secret protection last?
There is no fixed term. Under Article 263 of Decision 486, it lasts as long as the information remains secret, has commercial value for being secret and is protected by reasonable measures.
How long do I have to bring a trade secret claim?
Two years from learning who committed the act and, in any event, three years from the act itself, under Article 23 of Law 256 of 1996.
Talk to an attorney
Write to us on WhatsApp and we will tell you which of your company’s information can be protected as a trade secret and what is missing for that protection to work.