Trade secret laws and regulations in Peru

It has not been implemented in the Peruvian jurisdiction.

Yes. The applicable sources of law related to trade secrets in Peru are the following:

1. Decision 486 - Common Regime on Industrial Property of The Andean Community Commission
2. Legislative Decree N° 1075 - Complementary Provisions to Decision 486 of the Andean Community Commission establishing the Common Regime on Industrial Property
3. Legislative Decree N° 1044 - Repression of Unfair Competition Law

INDECOPI is the Authority that will apply the above-mentioned sources of law in proceedings regarding trade secrets.

Decision 486 defines trade secrets in article 260° as follows:

“Article 260 - Any undisclosed information that a natural or legal person legitimately owns, that can be used in any productive, industrial or commercial activity, and that may be transmitted to a third party, as long as that said information:

1. is a secret, in the sense that as a whole or in the configuration and precise meeting of its components, is not generally known or easily accessible by those in the circles that normally handle the respective information;
2. has commercial value because it is secret; and
3. has been the subject of reasonable measures taken by its legitimate owner to maintain its secrecy.

The information of a business secret may be related to the nature, characteristics or purposes of the products; to production methods or processes; or to the means or forms of distribution or marketing of products or provision of services”.

Article 3° of Legislative Decree N° 1075 establishes that trade secrets constitute elements of industrial property, while article 40.2° of Legislative Decree N° 1044 establishes that the request for a declaration of reservation regarding a commercial, industrial, technological or, in general, business secret will be granted by INDECOPI, as long as this trade secret is:

1. Knowledge that is reserved or private on a specific object;
2. Protected by those who have access to the said knowledge who have the will and conscious interest to preserve it, adopting the necessary measures to maintain the information as such; and,
3. Of commercial, effective or potential value.

Yes. According to article 260° of Decision 486 mentioned above, in order to protect the information as a trade secret, the information must i) be a secret (not generally known or easily accessible by those in the circles that normally handle the respective information); ii) have commercial value; and iii) have been the subject of reasonable measures taken by its legitimate owner to maintain its secrecy.

Article 40.2° of Legislative Decree N° 1044 also establishes the same measures in order to protect information as a trade secret.

Yes. According to article 264° of Decision 486, trade secrets are transferable and licensable as follows:

“Article 264 - Whoever legitimately owns a business secret may transmit or authorise the use to a third party. The authorised third party shall have the obligation not to disclose the business secret by any means, unless otherwise agreed with the person who transmitted or authorised the use of said secret (…)”

Yes. When a party other than the trade secret owner transfers or executes licensing without the owner's authorisation, these acts are considered acts of unfair competition. Therefore, INDECOPI can impose fines that must not exceed 10% of the gross income received by the offender, related to all of its economic activities, corresponding to the fiscal year immediately prior to the issuance of the INDECOPI resolution, as follows:

1. If the infringement was classified as minor and had not produced a real impact on the market, the sanction will be a warning;
2. If the infraction is classified as mild, with a fine of up to fifty (50) Tax Units (approximately USD 63,236);
3. If the infraction is classified as serious, a fine of up to two hundred and fifty (250) Tax Units (approximately USD 316,177);
4. If the offence is classified as very serious, a fine of up to seven hundred (700) Tax Units (approximately USD 885,295).

Decision 486, Legislative Decree N° 1075 and Legislative Decree N° 1044 do not forbid co-ownership of trade secrets. Therefore, co-ownership is possible.

Article 262° of Decision 486, establishes the actions that constitute infringement of trade secrets, considering those actions as acts of unfair competition, as follows:

“Article 262° - Whoever lawfully has control of a business secret will be protected against disclosure, acquisition or use of such secrecy contrary to fair trade practices by third parties. The following acts will constitute unfair competition regarding a business secret:

1. exploitation, without the authorisation of its legitimate holder, of a business secret that has been accessed subject to a reservation obligation resulting from a contractual or employment relationship;
2. communication or disclosure, without authorisation from its legitimate holder, of the aforementioned business secret in subparagraph a) with the intention of obtaining personal benefit or that of a third party or harm to the said holder;
3. acquisition of a business secret by means that are unlawful or contrary to honest commercial use;
4. exploitation, communication or disclosure of a business secret that has been acquired by the media referred to in subsection c);
5. exploitation of a business secret that has been obtained from another person knowing, or who should know, that the person who communicated it acquired the secret by the means referred to in subsection c), or did not have authorisation from its legitimate holder to communicate it;
6. communication or disclosure the business secret obtained pursuant to subsection e), for personal benefit or that of a third party or to harm the legitimate holder of the business secret.

A business secret will be considered acquired by means contrary to honest commercial use when the acquisition resulted, among others, from industrial espionage, the breach of a contract or another obligation, breach of trust, infringement, breach of a duty to loyalty, or the instigation to carry out any of these acts”.

Also, article 13° of Legislative Decree N° 1044 establishes the following acts as unfair competition regarding trade secrets:

“Article 13 - Acts of violation of business secrets.-

They consist of carrying out acts that have the following actual or potential effect:

1. Disclose or exploitation, without the authorisation of the owner, other business secrets that have been legitimately accessed with a duty of reservation or illegitimately;
2. Acquire business secrets of others through espionage, inducing a breach of duty of reservation or a similar procedure”.

Yes. Trade secret owners can request an interim measure so that INDECOPI can obtain or retain evidence. This can be achieved by INDECOPI conducting an inspection of the alleged offender.

Article 245° of Decision 486 establishes the faculty to request an interim measure in order to stop an alleged infringement, avoid its consequences, obtain or retain evidence, or ensure effectiveness of the action or compensation for damages.

Also, article 33.2° of Legislative Decree N° 1044 establishes that interim measures can be dictated to order the cessation of an act or the prohibition of the same if it has not yet been put into practice, the imposition of conditions, the confiscation, deposit or immobilisation of the products, labels, packaging and advertising material subject of denunciation, adoption of the necessary measures for the customs authorities to prevent the entry of the products subject to complaint into the country. This must be coordinated with the competent authorities in accordance with current legislation, the temporary closure of the establishment of the accused, the adoption of positive behaviours and any others that contribute to preserving the affected fair competition and avoiding the damage that may be caused by the acts subject to the procedure.

Regarding final measures after an infringement is committed, article 122° of Legislative Decree N° 1075 establishes the following final measures:

1. the cessation of the acts that constitute the infraction;
2. the withdrawal from the commercial circuits of the products resulting from the infringement, including the containers, packaging, labels, printed or advertising material or other materials, as well as the materials and means used to commit the infringement;
3. the prohibition of the import or export of the products, materials or means referred to in b);
4. the necessary measures to avoid the continuation or repetition of the infraction;
5. the destruction of the products, materials or means referred to in b) or the temporary or definitive closure of the establishment of the accused;
6. the temporary or definitive closure of the accused's establishment; or
7. the publication of the resolution that ends the procedure and its notification to interested persons, at the expense of the offender.

As for remedies to restore fair competition in the market, Legislative Decree N° 1044 establishes in article 55° that INDECOPI can dictate the following:

1. The cessation of the act or its prohibition if it has not yet been put into practice;
2. The removal of the effects produced by the act, by carrying out activities, even under certain conditions;
3. Confiscation and/or destruction of products, labels, packaging, infringing material and other elements of false identification;
4. The temporary closure of the offending establishment;
5. Rectification of misleading, incorrect or false information;
6. The adoption of the necessary measures so that the customs authorities prevent the entry of the offending products into the country, which must be coordinated with the competent authorities, in accordance with current legislation; or
7. The publication of the condemnatory resolution.

Even though article 245° of Decision 486 indicates that interim measures can be requested before the beginning of a proceeding, the Decision does not indicate a specific period to file the claim after filing or obtaining an interim measure. Nevertheless, article 248° establishes that any interim measure executed without the intervention of the other party will be without effect if the infringement action is not initiated within ten days after the execution of the interim measure.

Legislative Decree N° 1044 establishes that interim measures can be dictated any time, during the proceeding.

No. Compensations for damages can only be requested to the Judiciary Power by a damages lawsuit.

No. Decision 486, Legislative Decree N° 1075 and Legislative Decree N° 1044 do not allow the dictation of final measures and remedies through ex parte hearings. Nevertheless, according to article 248° of Decision 486, any interim measure executed without the intervention of the other party will be without effect if the infringement action is not initiated within ten days after the execution of the interim measure.

The calculation could vary depending on the type of damage suffered, such as emerging damage or loss of profits. Only the Judiciary Power can make this calculation.

According to Article 110° of Legislative Decree N° 1075, the limitation period to claim infringements to industrial property rights is two years, and it runs from the date the owner became aware of the infringement or, in any case, five years after the offence was last committed.

Also, Article 51° of Legislative Decree N° 1044 establishes that the limitation period to claim unfair competition acts is five years after the offence was last committed.

The only circumstance that interrupts or suspends the limitation period is the initiation of the administrative sanctioning procedure when the alleged offender is notified of charges.

Yes. According to article 11° of Legislative Decree N° 1075, in the event that INDECOPI receives or obtains information considered confidential, it will, at the request of the interested party, guarantee its reservation and confidentiality in accordance with the rules of the matter. Also, article 40° of Legislative Decree N° 1044 establishes that INDECOPI can guarantee the reservation of confidential information.

According to article 248° of Decision 486, any interim measure executed without the intervention of the other party will be without effect if the infringement action is not initiated within ten days after the execution of the interim measure. If the infringement action is not initiated during the aforementioned period, the alleged offender will not have to comply with the interim measure.

Regarding final measures and remedies, once they are dictated, they must be complied with unless the sanctioned party decides to appeal INDECOPI’s decision. Ordered interim measures, however, must be complied with even if the alleged offender decides to appeal.

Yes. According to article 7° of Legislative Decree N° 807 (faculties, rules and organisation of INDECOPI), malicious claims can be alleged in the same proceeding for the trade secret claim. Malicious claims (manifestly unfounded and/or found to have been initiated abusively or in bad faith) can be sanctioned with fines up to 50 Tax Units (approximately USD 63,236).

Also, article 121° of Legislative Decree N° 1075 indicates that bad faith in the commission of the offending act will be taken into account to determine the sanction to be applied.

No. Regarding employee or employer liability, article 265° of Decision 486 only establishes that any person who by reason of his work, employment, position, position, performance of their profession or business relationship with access to a business secret whose confidentiality has been prevented must refrain from using or disclosing this secret, or disclosing it without a justified cause and without the consent of the person who possesses the secret or the consent of its authorised user.

Yes, it can as long as the employer exploited, communicated or disclosed a business secret that has been obtained from another person (e.g. an employee) who knows, or should have known, that the person who communicated it acquired the secret by unlawful means or contrary to honest commercial use, or that it did not have authorisation from its legitimate holder to communicate it; for their own benefit or from a third party, or to harm the legitimate holder of the business secret (article 262° of Decision 486).