Protection Strategies For The Commercial Field

Protection strategies for the commercial field

Introduction

Every company legally constituted regardless of the economic activity they carry out, has or had at some time information of absolute reserve that only the members of the same knew, which is commonly appointed as the business secret or the commercial reserve. This business secret is nothing more than a reserved information that a natural or legal person hosts and that can generate an advantage over its competence with the economic activity carried out.

Developing

In the same way there are various procedures to defend this information and avoid that third parties access it;Anyone who has a business secret can authorize another to know and use it, but it is totally forbidden to reproduce or disseminate the information that he knows there. Given the situation in which this information is revealed by any of the connoisseurs of the same, without just cause and without the permission of those who trust this information, a crime appointed violation of the commercial or industrial reserve, stipulated in the article308 of the Colombian Criminal Code.

This information could be competitive, beneficial, of the nature of the product, distribution or marketing ways. Commercial secrets are part of patrimonial assets and, given their ability to add value, can become an important part of company assets. On the other hand, as a wealth generation factor, business secret can become the basis of a variety of businesses from which the company benefits, since business secret can be delivered to a third party as a license, franchise or technology transfer.

Therefore, every company that knows its intangible heritage can adopt on its basis policies and strategies beyond its scope of protection, which focus on the creation of opportunities and the opening of new markets in the so -called ‘knowledge economy’. For the purposes of the normative context, the Criminal Code can be taken into account in its article 308 called "violation of the commercial and industrial reserve" and article 418 "violation of secret";Law 256 of 1996 on unfair competition and in its article 160 that refers to the violation of secrets and in 260 the violation of the commercial secret.

In the Andean decision 486 of 2000, article 262 and 265 is taken into account;Finally, the Substantive Labor Code in its article 58, which refers to the special obligations of the worker (including Business Secret). The financial superintendence through the resolution does not. 11090 of 2003-04-29 "Through which an investigation by unfair competition" considered that a list of consumers or customers of a company is resolved, it could be considered as business secret, 

Regarding that information that is not general understanding of a company such as its name, address or phone. In impact, it has the character of business secret, the portion of the list or consumer database that collects information about needs and habits of purchase, sales, account status of each buyer, special promotions by consumers, and other information that asks forFrom the businessman a collection, organization and study work, product of his commercial experience.

However, this resolution establishes that the fact that a former worker, defendant or person who disseminated or made use of the information has contacted the natural and legal persons present in the list of consumers to give their services, assumes that he hasUsed the list referring to information that does not constitute business secret. The data that can be considered included in the category of commercial secret are: processes, techniques and construction knowledge;Data compilations.

Exemplifying consumer lists;drawings and models, projects, maps;algorithms, computer programs and computer programs themselves;Product construction formulas;Commercial tactics, occupations plans, export plans, sales plans;financial information;files related to staff;manuals;components;Data on inquiry and development occupations, for example: an employee of the “Ramo” productive company is fired for missing his work repeatedly without a valid justification that certifies his absence.

At the rate of this dismissal, the employee gets so angry that he reveals the formula used for the manufacture of chocolate that covers the “Chocorramo”, there is clearly a violation of the commercial or industrial reserve because the now former employee exposes the public and reveals beforeThe competition the ingredients, techniques and manufacturing processes of the star product of said brand. There may also be the case in which a former employee of the ABC company, will work with its competition, and exhibit before them the strategies of finance, sales, trade of ABC as well as the list of its best customers.

It is important to add that, for such information to be considered secret or industrial reserve, three requirements must meet: that the information is not easily accessible by those who are in circles that normally handle such information. Must have great commercial value because it is secret. Its legitimate holder had to take enough measures to keep it secret. It is very important to take into account the following to perform the crime analysis: that who disclosed or exposed the information has the knowledge and knows the secret nature of this.

That such information has a reserve or private character because its holders chose not to do it accessible to third parties. That this secret falls on industrial or commercial methods or experiences, or is a reference with the activity of the company or its organizational part. That the holders of the secret have the will and conscious interest to keep it reserved, adopting the elementary measures for that. That said secret has been disclosed by people who are aware of him at the rate of his position, trade or profession.

Typical elements of crime: the active subject of behavior is undetermined, anyone can commit the crime;The legal good affected or endangered is collective, economic and social order;The taxpayer: it could be deduced that it is the State, since it is the holder of the legal good, however, the affected legal entity would also be;The behavior is described in the art. 308 of the Criminal Code in Action, it is a composite conduct, since it has 3 rector verbs of an alternative nature;The law requires that this crime be the result. 

conclusion

If any of the 3 guiding verbs described in the article were achieved, the crime would be incurred;As for the causal link and objective imputation, of course it should be verified that the conduct complies with the three established criteria: that there is the creation of the risk for the legal good, that there is the concretion of the risk and the scope of type;The object on which the behavior falls would be immaterial because it falls on information.