When are trade secrets eligible for protection? What acts are considered as infringement of the right to trade secrets?
What is trade secret?
Pursuant to Clause 4 Article 4 of the Law on Intellectual Property 2005 of Vietnam (amended by Clause 2 Article 1 of the amending and supplementing a number of articles of the law on intellectual property 2009 of Vietnam), industrial property rights means rights of organizations and individuals to inventions, industrial designs, layout-designs of semiconductor integrated circuits, trade secrets, marks, trade names, geographical indications and trade secrets they have created or own, and the right to repression of unfair competition.
Pursuant to Clause 23 Article 4 of the Law on Intellectual Property 2005 of Vietnam (amended by Clause 2 Article 1 of the amending and supplementing a number of articles of the law on intellectual property 2009 of Vietnam), trade secret means information obtained from financial or intellectual investment activities, which has not yet been disclosed and can be used in business.
Thus, trade secret means information obtained from financial or intellectual investment activities, which has not yet been disclosed and can be used in business. Trade secret is under the industrial property according to the regulations of the law on intellectual property.
What are the conditions for trade secrets to be eligible for protection?
Pursuant to Article 84 of the Law on Intellectual Property 2005 of Vietnam on conditions for trade secrets to be eligible for protection:
“Article 84. General conditions for trade secrets to be 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.”
Besides, objects ineligible for protection as trade secrets are stipulated in Article 85 of the Law on Intellectual Property 2005 of Vietnam:
“Article 85. 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.”
How to use a trade secret?
Pursuant to Clause 4 Article 124 of the Law on Intellectual Property 2005 of Vietnam on use of a trade secret:
Use of a trade secret means the performance of the following acts:
- Applying the trade secret to the manufacture of products, provision of services or trade in goods;
- Selling, advertising for sale, stocking for sale or importing products manufactured with the application of the trade secret.
Industrial property rights
What acts are considered as infringement of the right to trade secrets?
Pursuant to Article 127 of the Law on Intellectual Property 2005 of Vietnam on acts of infringement of the right to trade secrets:
- The following acts shall be deemed infringements of the right to trade secrets:
+ Accessing or acquiring information pertaining to a trade secret by taking acts against secrecy- keeping measures applied by lawful controllers of such trade secret;
+ Disclosing or using information pertaining to a trade secret without the permission of the owner of such trade secret;
+ Breaching secrecy-keeping contracts or deceiving, inducing, buying off, forcing, seducing or abusing the trust of persons in charge of secrecy-keeping in order to access, acquire or disclose a trade secret;
+ Accessing or acquiring information pertaining to the trade secret of an applicant for a licence for trading in or circulating products by taking acts against secrecy-keeping measures applied by competent bodies;
+ Using or disclosing trade secrets, while knowing or having the obligation to know that they have been acquired by others engaged in one of the acts stipulated in sub-clauses (a), (b), (c) or (d) of this clause;
+ Failing to perform the secrecy-keeping obligation stipulated in article 128 of this Law.
- Lawful controllers of trade secrets defined in clause 1 of this Article include owners of trade secrets, their lawful licensees and managers of trade secrets.
What are regulations on obligation to maintain secrecy of test data?
Pursuant to Article 128 of the Law on Intellectual Property 2005 of Vietnam on obligation to maintain secrecy of test data:
- Where the law requires applicants for licences for trading in or circulating pharmaceuticals or agro- chemical products to supply test results or any other data being trade secrets obtained by investment of considerable effort, and where applicants request such data to be kept secret, the competent licensing body shall be obliged to apply necessary measures so that such data is neither used for unfair commercial purposes nor disclosed, except where the disclosure is necessary to protect the public.
- From the time of submission of secret data in applications to the competent body stipulated in clause 1 of this article to the end of a five year period as from the date the applicant is granted a licence, such body must not grant licences to any subsequent applicants in whose applications the said secret data is used without the consent of submitters of such data, except for the cases stipulated in clause 3(d) of article 125 of this Law.
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