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I.  Industrial Property Law

In Brazil, Law No. 9,279 of May 14, 1996, regulates rights and duties related to industrial property.  According to article 195(XI), whoever reveals, exploits, or uses, without authorization, knowledge, information, or confidential data used in industry, commerce, or services to which the person has had access through a contractual or employment relationship, even after the termination of the contract or relationship, commits the crime of unfair competition, unless the information is public knowledge or obvious to someone with the required technical skills.[1] 

It is also considered a crime of unfair competition to reveal, exploit, or use knowledge or information referred to in article 195(XI) of Law No. 9,279 that was obtained by unlawful means or fraud;[2] and to reveal, exploit, or use, without authorization, test results or other undisclosed information that involved a considerable effort and has been presented to government agencies as a condition for the approval of products for commercialization.[3] 

Employers, partners, or officers of a company are also subject to prosecution for those crimes described in articles 195(XI) and 195(XII) of Law No. 9,279.[4]  When necessary to protect the public, however, the provisions of section XIV of article 195 of Law No. 9,279 do not apply to the disclosure of information by a government agency responsible for authorizing the commercialization of the product.[5]

In the event that confidential information, such as industrial secrets or trade secrets, is revealed in court for the defense of the interests of any party, the judge must order that the trial be continued in private.[6]  The use of such information is forbidden and the other party may not use it for any other purpose.[7]

Regardless of any criminal actions, the aggrieved party may file applicable civil actions pursuant to the terms of the Code of Civil Procedure.[8]  Compensation is determined according to the benefits that the injured party would have received if the violation had not occurred.[9]

The law guarantees the injured party the right to ask for compensation for loss and damage caused by the infringement of industrial property rights and unfair competition not provided for in Law No. 9,279 that may cause harm to the reputation or business of others, create confusion among commercial or industrial establishments or service providers, or create confusion between the products and services available in commerce.[10]

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II.  Constitutional Principle

Article 5(XIV) of the Brazilian Constitution states that access to information is assured to everyone and the confidentiality of the source is protected when necessary for the performance of a professional activity.[11]

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III.  Civil Code

Pursuant to article 229(I) of the Civil Code, no one may be obligated to testify regarding facts which, by his status or profession, the person must keep secret.[12]

With regard to illicit acts, the Civil Code determines that a person who, by a voluntary act or omission, negligence, or imprudence, violates the rights of and causes damage to another, even though the damage is exclusively moral, commits an illicit act.[13] 

A person who practices an illicit act (articles 186 and 187 of the Civil Code) and causes damage to other persons is obligated to repair the damage.[14]  The employer or principal is also responsible for the civil damages caused by his employees, servants, and agents in the performance of their work or because of it.[15]  The amount of compensation is measured by the extent of the damage.[16]

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IV.  Code of Civil Procedure

Like the Civil Code, the Code of Civil Procedure also protects trade secrets by stating that a party is not obligated to testify about facts that, by status or profession, the person should keep secret.[17]  Parties and witnesses may be excused from showing in court a document or thing if its exhibition entails the disclosure of facts about which, by status or profession, they should keep secret.[18]

As for legal remedies the Code states that a judge may order the search and seizure of persons or things.[19]  In the request for the search and seizure the requester must state the reasons that justify the measure and the knowledge that the person or thing is in the designated place.[20]  If necessary, this justification for the search and seizure can be made in private. 

Once the allegations are proved, the search and seizure warrant is issued.  The warrant must indicate the house or place where the warrant is to be served, describe the person or thing sought, designate what should be done with the person or thing, and be signed by the judge who issued the order.[21]

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V.  Labor Law

According to article 482 of the Brazilian Consolidation of Labor Laws, a violation of trade secrets constitutes just cause for termination of employment by the employer.[22]

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Eduardo Soares
Senior Foreign Law Specialist
August 2013

 

[1] Lei No. 9.279, de 14 de Maio de 1996, art. 195(XI), http://www.planalto.gov.br/ccivil_03/Leis/L9279.htm.

[2] Id. art. 195(XII).

[3] Id. art. 195(XIV).

[4] Id. art. 195(§1).

[5] Id. art. 195(§2).

[6] Id. art. 206.

[7] Id.

[8] Id. art. 207.

[9] Id. art. 208.

[10] Id. art. 209.

[12] Código Civil, Lei No. 10.406, de Janeiro de 2002, art. 229(I), http://www.planalto.gov.br/ccivil_03/Leis/2002/ L10406.htm.

[13] Id. art. 186.

[14] Id. art. 927.

[15] Id. art. 932(III).

[16] Id. art. 944.

[17] Código de Processo Civil, Lei No. 5.869, de 11 de Janeiro de 1973, art. 347(II), http://www.planalto.gov. br/ccivil_03/Leis/L5869compilada.htm.

[18] Id. art. 363(IV).

[19] Id. art. 839.

[20] Id. art. 840.

[21] Id. art. 841.

[22] Consolidação das Leis do Trabalho, Decreto-Lei No. 5.452, de 1 de Maio de 1943, art. 482(g), http://www.planalto.gov.br/ccivil_03/Decreto-Lei/Del5452.htm.