What is a trade secret in Vietnam? What conditions must be met for information to be protected in the name of a trade secret in Vietnam?
What is a trade secret in Vietnam?
Pursuant to Clause 23, Article 4 of the 2005 Law on Intellectual Property in Vietnam (amended by Clause 2, Article 1 of the 2009 Law on Amendments to Law on Intellectual Property), as follows:
Interpretation of terms
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1. Intellectual property rights means rights of organizations and individuals to intellectual assets, including copyright and copyright-related rights, industrial property rights and rights to plant varieties.
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23. Trade secret means information obtained from financial or intellectual investment activities, which has not yet been disclosed and can be used in business.
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Thus, trade secret means information obtained from financial or intellectual investment activities, which has not yet been disclosed and can be used in business and is subject to industrial property rights.
What is a trade secret in Vietnam? What conditions must be met for information to be protected in the name of a trade secret in Vietnam?
What conditions must be met for information to be protected in the name of a trade secret in Vietnam?
Pursuant to Article 84 of the 2005 Law on Intellectual Property in Vietnam on general conditions for trade secrets eligible for protection as follows:
General conditions for trade secrets eligible for protection
A trade secret shall be eligible for protection when it satisfies the following conditions:
1. It is neither common knowledge nor easily obtainable.
2. When used in business activities, the trade secret will create for its holder advantages over those who do not hold or use it.
3. The owner of the trade secret maintains its secrecy by necessary means so that the secret will not be disclosed nor be easily accessible.
In addition, according to Article 85 of the 2005 Law on Intellectual Property in Vietnam on the object ineligible for protection as trade secrets:
Objects ineligible for protection as trade secrets
The following confidential information shall be ineligible for protection as trade secrets:
1. Personal identification secrets.
2. State management secrets.
3. National defence and security secrets.
4. Other confidential information unrelated to business.
Thus, information protected in the name of a trade secret must meet the following conditions:
- It is neither common knowledge nor easily obtainable.
- When used in business activities, the trade secret will create for its holder advantages over those who do not hold or use it.
- The owner of the trade secret maintains its secrecy by necessary means so that the secret will not be disclosed nor be easily accessible.
- Information not related to personal identification, State management, national defence and security, and other confidential information unrelated to business.
Under what conditions is an infringement of trade secret determined?
According to the provisions of Article 5 of Decree No. 105/2006/ND-CP stipulating as follows:
Determination of acts of infringement
An examined act shall be regarded as an act of infringement of intellectual property rights specified in Articles 28, 35, 126, 127, 129 and 188 of the Law on Intellectual Property when all the following bases exist:
1. The examined subject matter is a protected one.
2. The examined subject matter contains an infringing element.
3. The person that takes the examined act is neither the intellectual property right holder nor any person permitted by law or a competent agency under Articles 25, 26, 32, 33, Clauses 2 and 3 of Article 125, Article 133, Article 134, Clause 2 of Article 137, Articles 145, 190 and 195 of the Law on Intellectual Property.
4. The examined act takes place in Vietnam.
An examined act that takes place in the Internet but is targeted at consumers or information users in Vietnam shall be regarded to take place in Vietnam.
Thus, an act is considered an infringement of trade secret when the following conditions are met:
- The examined subject matter is the one protected by intellectual property rights.
- The examined subject matter contains an infringing element.
- The person that takes the examined act is neither the intellectual property right holder nor any person permitted by law or a competent agency.
In which, the owner of a trade secret is an organization or individual that legally obtains a trade secret and keeps it confidential.
Trade secrets acquired by the hirer or the party performing the assigned task while performing the hired or assigned work are owned by the hirer or the assignor, unless otherwise agreed upon by the parties.
- The examined act takes place in Vietnam.
An examined act that takes place in the Internet but is targeted at consumers or information users in Vietnam shall be regarded to take place in Vietnam.
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