This is a comparative study of six countries that analyses, in its first section, national trade secret regulations, the international framework, the requirements, and scope of the law, enforcement, procedural and contractual aspects, and the relationship with competition law. A second section focuses on data protection, comparing these countries in terms of national regulations and the scope of the law.

Undisclosed information, or trade secrets, constitutes a category of intellectual property encompassing confidential commercial or industrial information conferring a competitive advantage to a company. More specifically, any undisclosed information that a natural person or a legal entity legitimately holds, which may be used in any productive, industrial, or commercial activity and is capable of being passed on to a third party could be considered a business secret. This protection mechanism is advantageous to protect those inventions which are not patentable (i.e. it does not meet the minimum requirements, or the subject matter is not eligible for protection). Special consideration is required for the test data for pharmaceutical products, which are also protected by undisclosed information regulations. 

Unlike patents or other intellectual property rights, trade secrets are distinct in that they protect technical or valuable information from being disclosed to third parties. Therefore, the protection mechanism lies with the owner of the information. It should also be noted that it does not have a time limit so that the secret can be protected indefinitely, which will depend on the possibility of reverse engineering or copying of the technology. Such regulation protects this secrecy by punishing anyone who obtains such information illegally. 

In Latin America, free trade agreements have influenced the regulations governing trade secrecy and test data protection. It is, therefore, possible that there is a regulatory discrepancy concerning the nature of the protection conferred on undisclosed information and test data. This variety may mainly affect what is understood as undisclosed information and whether the regime of protection against unfair competition applies or is based on specific provisions or case law relating to protecting confidential information.

Concerning current regulations, the protection of undisclosed information was recognised by the TRIPS Agreement in article 39. This article obliges member states to protect this information through rules against unfair competition, as provided in article 10bis of the Paris Convention for the Protection of Industrial Property. TRIPS establishes the protection of trade secrets in the second paragraph, while it refers to test data for the commercial approval of products that require it in paragraph 3. Although TRIPS only involves the protection of undisclosed information through the unfair competition regime, the last decades have seen the normative development of trade secrets protection – in Europe and the US – as an intellectual property right with specific characteristics for its enforcement, different is the case of test data that through various regulations have slowly been converted into exclusive rights.