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  • Intellectual property framework

    Overview

    Protection of intellectual property rights is required by the Federal Constitution and by several multilateral treaties. The main statutes in this area are federal statutes. However, in case of litigation, some matters are subject to federal jurisdiction, and others to provincial jurisdiction.

  • Commercial contract framework

    Overview

    Commercial contracts are governed by the Civil and Commercial Code. This code came into effect in 2015 and it replaces the previous separate Civil Code and Commercial Code. It is part of the federal legislation, but jurisdiction regarding its implementation and litigation resulting thereunder corresponds primarily to the provincial courts.

    The Civil and Commercial Code includes general provisions on contracts, which are applicable to all contractual transactions. These provisions govern matters such as the formation of contracts, offer and acceptance, possible subject matter of contracts, legal formalities, the legal effects of contracts, contract termination and others.

    In addition, the Civil and Commercial Code includes provisions applicable to specific types of contracts, such as sale agreements, leases, franchise agreements and agency agreements. More than 30 types of agreements are subject to specific provisions of this kind. These specially regulated agreements are thus subject to the general rules applicable to contracts –described above – and to the special rules applicable to the relevant type of agreement. Agreements that are not subject to special rules are nevertheless valid, and they are governed primarily by the general contract rules and – to the degree possible – by the rules applicable to analogous specially regulated contracts.

    Other laws include provisions on specific types of commercial contracts. For instance, the Copyright Law includes certain provisions of contracts related to software and to publishing; the Patent Law includes rules on license agreements; and the Insurance Law includes rules on insurance contracts. However, in all these specially regulated contracts, the general contract law rules included in the Civil and Commercial Code are also applicable.

    Commercial contracts with the federal or provincial governments or with other governmental entities are also governed by administrative law. Special rules on contracts with state entities have been included in federal or provincial laws, or have been developed by case law.

  • Copyrights

    Nature of right

    Copyright protects intellectual creations in all fields of science, art and literature. Article 1 of the Copyright Law includes a non-exhaustive list of possible intellectual works protected by copyright. These include, among others, literary and artistic works, music, architectural works and software.

    Copyright protects intellectual expressions, but not ideas. For example, the contents of a book in terms of sentences and other literary expressions are protected by copyright, but the creative idea underlying the book as a whole is not.

    Copyright results from the creation of an intellectual work. Registration is not necessary for copyright to exist, although it is necessary for the exercise of some rights by local authors. Upon creation of a protected work, copyright belongs to the original author or authors, who then may transfer their right, by contract or by the operation of certain legal rules.

    Copyright includes economic and moral rights. Economic rights consist, basically, in the exclusive right to use and exploit the protected work. The Copyright Law lists some of the elements of this exclusive right, such as the right to reproduce the relevant work, to market copies, to prepare derivative works or to have the work performed publicly.

    Moral rights include the so call "integrity right" – that is, the right to preserve the text, title and other contents of the work, even if property rights on such work have been assigned; the "paternity right," the author’s right to be named and identified as such together with the work; the "publication right," the right to decide whether the right will be published; and the "alteration right," the right to modify the work, even after it has been published. Moral rights belong to the author and they are generally non-assignable.

    Legal framework

    Copyright law is included in Law 11, 723, as amended. In addition, multiple laws and regulations govern matters such as related rights, publishers' rights and collective management societies.

    Argentina is part of the main multilateral international copyright agreements, such as the Trips Agreement, the Berne Convention and the Rome Convention. The provisions of these agreements are actively enforced by the courts.

    Duration of right

    The general rule is that copyright protection lasts for a term of seventy years, counted as of January 1 of the first year after the death of the author, as well as through the life of the author.

    In the case of work done through cooperation, the 70-year term is computed from the death of the last person who participated in the joint authorship of the work involved.

    In the case of posthumous works, the 70-year term is computed from the death of the author.

    The duration of protection of anonymous works whose copyright belongs to institutions, corporations or legal entities is 50 years from the date of publication of the work.

    Special rules on copyright duration apply to specific types of copyrightable works, such as photographs and cinematographic works.

    Ownership / licenses

    The basic rule is that ownership belongs to the author. Special rules have been developed in connection with special types of works, such as cinematographic works, derivative works and software.

    There are several types of joint ownership. It may apply to works done through cooperation, which imply a creative collaboration between different authors; to collective works, which are those created through the initiative or direction of one or more individuals, who coordinate or direct the efforts of several other individuals to achieve a joint result; and to composite works, which are the result of adding different separate works, each with a possible separate author and owner, into one final result.

    Works created by employees who have been hired for that purpose belong to the employer.

    Copyright may be subject to licenses, generally as part of broader contractual arrangements such as publishing agreements.

    Remedies for infringement

    Damages may be claimed before civil courts for all types of copyright violation. Registration of works is not necessary, except for local authors, whose rights may be suspended until registration takes place.

    It is also possible to file civil action to prevent further copyright violation, and to obtain preliminary remedies, such as injunction, in the course of civil procedures.

    Criminal remedies, particularly fines, are possible, but are not frequently applied.

  • Mask works / topographies

    Nature of right

    Mask works and topographies are not separately protected under Argentine law. They may be protected under patent law or by way of confidentiality.

    Legal framework

    Argentina has enacted no specific rules on chip protection. Although Argentina is part of the WTO and has approved the Trips Agreement, it has not yet implemented any rules on chip protection.

    The provisions on chip protection included in the Trips Agreement have not been deemed immediately applicable under Argentine law. In addition, Argentina has not ratified or implemented other multilateral treaties on chip protection, in particular the Treaty of Washington of 1989.

    Semiconductor technology, generally, and topographies, in particular, may be protected under the traditional intellectual property rules applicable to all types of technology, specially patent law and the rules on confidential information. Therefore, matters such as the duration of the relevant rights, ownership and remedies depend on the type of protection used in connection with each specific mask work or topography.

    Duration of right

    Not applicable for this jurisdiction.

    Ownership / licenses

     Not applicable for this jurisdiction.

    Remedies for infringement

    Not applicable for this jurisdiction.

  • Patents

    Nature of right

    Patents are a statutory right. The granting of patents is required by the Argentine Constitution and by different international documents, particularly the Trips Agreement. Patent rights imply an exclusive right to exploit a process or a product. The Argentine Patent Law defines the limits of these exclusive rights, on the basis of the provisions of the Trips Agreement.

    Legal framework

    Patents are governed by the Patent Law – Law 24,481, as amended. In addition, they are governed by the Trips Agreement and by the Paris Convention. Argentina is not a party to the Patent Cooperation Treaty.

    Duration of right

    The basic rule is that patents expire 20 years after the date in which the relevant patent application was filed. Argentina uses a "first to file" system, but it also applies the priority rules derived from the Paris Convention.

    Argentine law provides special rules on compulsory licenses and on patent termination due to lack of exploitation of the patented invention. Compulsory licenses may be granted in case of non-exploitation, competition law violations or sanitary emergencies, among other cases. Patent termination may result when, after a compulsory license was granted for lack of exploitation, no exploitation of the invention takes place for two years after the license was granted.

    Ownership / licenses

    Joint ownership is permissible. The Patent Law includes provisions on the exercise of patent rights by the joint owners. In addition the Civil and Commercial Code rules on joint property apply to patents.

    The Patent law includes rules on licenses. Licenses are not exclusive, unless the parties provide otherwise. Competition law rules are applicable to restrictive clauses included in license agreements.

    Remedies for infringement

    The Patent law provides both civil and criminal law remedies for cases of infringement.

    Civil remedies include the compensation of damages and termination of the infringing activities.

    A complex system of rules for preliminary remedies in patent cases is included in the Patent law. Generally, suspension of an alleged infringer's exploitation requires a preliminary procedure, with the participation of expert witnesses.

    Criminal procedures and sanctions are rare.

  • Trademarks

    Nature of right

    A trademark may consist of one or more words, with or without conceptual content, drawings, commercial symbols, monograms, engravings, prints, seals, images, stripes, color combinations, letter and number combinations, the special graphics of letters and numbers, advertisement phrases, reliefs, and any other sign with distinctive capacity.

    A trademark is normally protected by means of its registration. However, de facto trademarks, that is those that are used but not registered, are also protected in a more limited way.

    Legal framework

    Trademarks are governed by the Trademark Law – Law 22,362, as amended.

    In addition, trademarks are protected by the rules included in Trips Agreement and in the Paris Convention.

    Duration of right

    Registered trademarks are protected for a period of ten years, from the moment of registration. Trademark registration may be renewed indefinitely.

    Registration may be cancelled for lack of use during a period of five years. In addition, renewal of registration requires proof of the trademark's prior use.

    Ownership / licenses

    Ownership is acquired by means of registration. However, use of unregistered trademarks may result in certain rights for the user.

    Trademarks may be subject to joint ownership. The Trademark Law and the Civil and Commercial Code provide the rules applicable to these joint ownership relationships.

    Trademark licenses are possible. They are valid even if they are not registered with the trademark office.

    Remedies for infringement

    The Trademark Law provides both civil and criminal law remedies for cases of infringement.

    Civil remedies include the compensation of damages and the termination of the infringing activities.

    Special preliminary remedies are applicable in cases of trademark infringement. The trademark owner may obtain an injunction against the infringer, when the trademark is registered and its violation is immediately evident.

    Criminal law remedies are rarely used in practice.

  • Trade secrets

    Nature of right

    Argentine law provides protection for trade secrets and confidential information. A complex set of rules creates rights against conduct whereby access is gained illegally to confidential information, or which implies illegal use of trade secrets or confidential information or which results in the unauthorized and harmful disclosure of confidential or secret information.

    Confidential information is characterized by the fact that it is kept in a reserved manner and that it is not generally available for technicians working in the relevant technical field. Trade secrets receive a special degree of protection, particularly under criminal law.

    Legal framework

    Confidential information is governed and protected by Law 24,766. It is also protected by the Trips Agreement and by the Paris Convention.

    In addition, multiple rules and statutes protect confidential information and trade secrets. Labor law protects the confidentiality and ownership of information used in employment relationships.

    Several criminal law rules apply to special types of violations of confidentiality. In particular, disclosure of trade secrets and unfair competition by means of the illegal use or appropriation of trade secrets are subject to criminal law penalties.

    Duration of right

    Confidential information and trade secrets is protected for as long as the relevant information is kept confidential. The degree of protection diminishes if the information ceases to be objectively a secret, due to its previous disclosure or because it has been obtained independently by other parties.

    Ownership / licenses

    Ownership results from the obtention of the information, accompanied by legal or practical measures aimed at restricting access to that information by third parties. No registration requirement is applicable.

    Joint ownership is possible.

    Trade secret or know-how licenses are common and enforceable.

    Remedies for infringement

    Argentine law provides civil and criminal law remedies for cases of trade secret infringement.

    Damages caused by these violations must be compensated. It is also possible to obtain court orders requiring termination of the violation.

    Preliminary remedies include injunctions against further exploitation or disclosure of trade secrets.

    Criminal remedies are applicable in cases of disclosure of trade secrets acquired in the course of employment and other professional relationship, as well as in cases in which the violation of the rights to confidential information or trade secrets results in unfair competition.

  • Other key IP rights

    Nature of right

    Industrial designs

    Industrial models and designs are protected by special industrial property rights. An industrial model or design consists in the forms embodied in or the aspect applied to an industrial or artisan product, which confer an ornamental character to such product.

    Exclusive rights on industrial models and designs result from registration of the relevant model or design.

    Industrial designs

    Industrial designs

    Legal framework

    Industrial designs

    Industrial models and designs are protected by Decree 6673/1963, as amended. They are also protected in accordance with the Trips Agreement and the Paris Convention.

    Duration of right

    Industrial designs

    The rights derived from the registration of an industrial model or design last for a five-year period, counted from the date of filing of the relevant application. The registration may be renewed for two successive five-year period, if the owner requests such renewal.

    Ownership / licenses

    Industrial designs

    Ownership belongs to the author. There is a rebuttable presumption to the effect that the first applicant of an industrial model or design registration is the author of such industrial model or design. Joint ownership is possible, and is governed by the Civil and Commercial Code and by Decree 6673/1963 as amended.

    Industrial models or designs may be the subject matter of license agreements. No registration is necessary for the validity of these agreements.

    Remedies for infringement

    Industrial designs

    Civil and criminal law remedies are applicable in case of infringement. Civil remedies include the compensation of damages and termination of the violation.

    Preliminary injunctions and remedies are possible in accordance with general procedural rules.

    Criminal sanctions have been recently reinforced, but they are rarely applied.

  • Intellectual property in employment context

    Employees

    Special rules on employee inventions are included in the Patent Law and in the Labor Contract Law.

    There are basically three types of invention, from the perspective of employer-employee relationships. First, inventions made in technological areas for which the employee was hired as a researcher or developer belong to the employer. The employee may be entitled to a special compensation if he or she develops a patented invention which exceeds the normal scope of the employee's work. Second, inventions related to the employee's work or related to the employer's know-how or activities belong to the employee, but allow the employer to exercise an option to acquire rights over the invention. If the option is exercised, the employee is entitled to a payment reflecting the value of the invention. Third, inventions that do not fall into the two previous categories belong to the employee.

    Similar rules are applicable in the case of other types of technology or intellectual property rights. In the case of software, the law applies the “work for hire” doctrine, but allows the parties to agree to different contractual rules.

    Consultants / contractors

    The law is not explicit about the rights of consultants and contractors, who do not qualify as employees, with regard to technology and other intellectual property they develop. Generally, the parties may agree as to the rules which will apply to such rights. In the absence of a contractual framework, the technology or intellectual property generated by a consultant or contractor who was hired with the purpose of developing such items that will belong to the person paying for such work.

  • Key commercial contract considerations

    Registration of commercial agreements

    The general rule is that commercial agreements are not registered, and that their validity and effect is not subject to registration requirements. However, certain types of agreement must be registered to be effective or to have full effects against third parties. Agreements subject to registration include business association agreements, certain publishing agreements, certain chattel mortgages and certain agreements related to real estate. International transfer of technology agreements are subject to registration for tax purposes.

    Recognized language of commercial agreements

    Agreements are generally entered in Spanish. However, it is legally possible to enter agreements written in other languages. These agreements must be translated when presented in court. Spanish language may be necessary in consumer transactions.

    Country-specific issues for online content

    Argentina has ratified the WIPO conventions applicable online content and practices. However, enforcement of these conventions is weak.

    Enforceability of online/clickwrap/shrinkwrap terms

    The general rule is that acceptance of terms included in online, click wrap or shrink wrap elements is valid and effective, provided such acceptance is clearly stated and applies to terms that were known to the person giving the acceptance. However, several rules may limit the effects of agreements entered by these mechanisms, particularly consumer protection rules and rules on adhesion contracts.

    Governing law

    The basic rule is that the parties may agree as to the law that will govern their contractual rights and as to the applicable jurisdiction in case of dispute. This freedom of election is subject to several limitations. Non-Argentine law will not be enforced in Argentine courts if it  is contrary to Argentine public policy. Also, certain matters are necessarily governed by Argentine law. For example, if a business association is created in Argentina, its organization and other corporate aspects will be governed by Argentine law. Decisions made by non-Argentine courts or arbitration tribunals are enforceable in Argentina only after going through a special procedure before the Argentine courts, in the context of which the decision will only be enforced if it complies with certain rules, particularly not violating Argentine public policy. In addition, certain matters – ie, deciding the validity of a patent issued in Argentina – are necessarily subject to Argentine jurisdiction.

  • Key commercial contract terms

    Enforceability of warranty disclaimers

    Argentine law provides certain warranties, generally applicable to all types of contracts implying the transfer of rights. These warranties apply, in particular, to the validity of the rights being transferred and to the fitness of the goods regarding which rights are transferred.

    The general rule is that these warranties may be limited or eliminated by agreement between the parties. However, these disclaimers are totally or partially invalid in several types of cases: if the transferor had prior knowledge of the invalidity of the transferred rights or of the deficiency of the goods involved; if the transferor is a merchant and the parties waiving his or her rights are not; and if the warranty disclaimer is included in a consumer or adhesion contract.

    Enforceability of exclusions/limitations of liability indemnification

    Exclusions or limitations of liability indemnification are valid if they meet the general conditions applicable to contractual. However, they may be unenforceable in the following cases: when they extend to willful violations or defaults, or to violations or defaults resulting from gross negligence; when they are imposed in adhesion or consumer contracts; or when they result in the violation or annulment of rights that may not be removed or limited contractually.

    Indemnification

    The basic rule under Argentine law if full indemnification of economic or moral damages caused by illegal conduct, whether that conduct constitutes a contractual or a tort violation.

    The parties are free to include contractual rules as to the extent of their indemnification obligations.

    Penalty clauses and liquidated damages clauses are acceptable, but they may be limited or amended by the courts if their terms are deemed abusive.

    In the absence of contractual provisions, the indemnification's extent will depend on circumstances such as the willful or negligent nature of the violation, foreseeability of the damages caused and the comparative fault of the parties.

    Electronic signatures

    Electronic signatures are valid and effective under Argentine law. However, certain legal effects require that the signature comply with a special certification regime.

  • Key contacts
    Guillermo Cabanellas
    Guillermo Cabanellas
    Senior Partner DLA Piper (Argentina) [email protected] T +5411 41145500 View bio

Trade secrets

Legal framework

Argentina

Confidential information is governed and protected by Law 24,766. It is also protected by the Trips Agreement and by the Paris Convention.

In addition, multiple rules and statutes protect confidential information and trade secrets. Labor law protects the confidentiality and ownership of information used in employment relationships.

Several criminal law rules apply to special types of violations of confidentiality. In particular, disclosure of trade secrets and unfair competition by means of the illegal use or appropriation of trade secrets are subject to criminal law penalties.

Australia

Confidentiality of trade secrets is usually stipulated in the contracts between parties and is therefore enforceable under such contract. However, in instances where there is no contract, a plaintiff may be able to rely upon the common law doctrine of breach of confidence.

Austria

Trade secrets are addressed in a variety of legislation. In particular, Sections 122-124 of the Criminal Code penalize the discovery, publication or exploitation of trade secrets in various ways.

The Act on Unfair Competition will provide protection of trade secrets in Section 26a – 26j. It will also contain certain measures concerning the disclosure of trade secrets during trials to ensure protection. These regulations have already been decided by the National Assembly but have to be approved by the Federal Assembly, which will happen in 2019. The regulations implement EU-Directive 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure into Austrian law. The Directive is a commitment to creating a single market for intellectual property and establishes additional measures, procedures and remedies that should be made available to the holder of a trade secret in case of unlawful acquisition, use or disclosure of that trade secret by a third party.

Belgium

The following statutes govern actions by an employer against (former) employees:

  • Section 309 of the Criminal Code, which prohibits the disclosure of manufacturing secrets of the employer
Please note that this requires proving a malicious or fraudulent intent, which, as an evidentiary burden of proof, may be a high bar to clear.
  • Section 17 of the Act of July 3, 1978 on Employment Agreements states that employees are obliged, both during and subsequent to the term of the employment contract, to refrain from the unlawful acquisition, use or disclosure (within the meaning of Article XI.332/4 Code of Economic Law) of a trade secret (within the meaning of Article I.17/1(1) Code Economic Law) or secrets related to personal or confidential matters, of which they learn in the performance of their professional activities

The following legislation governs actions against other third parties:

  • Title 8/1 of Book XI of the Code of Economic Law
  • Civil liability law, namely Sections 1382-1383 of the Civil Code or (in case two undertakings are involved) Section VI.104 of Book VI "Market Practices and Consumer Protection" of the Code of Economic Law, in conjunction with Section 39(2) of the TRIPS Agreement and with Section 8 of the European Convention on Human Rights, if the third party illicitly obtains, misappropriates, discloses and uses a trade secret and thus causes or threatens to cause prejudice to a third party
  • Contract law, if an agreement (such as a non-disclosure agreement) was concluded with the third party

Brazil

Trade secrets are addressed for Brazil under Federal Law no. 9,279/96 (the Industrial Property Law).

Canada

Trade secrets are protected under the common law cause of action for breach of confidence, or otherwise by contract. In Québec, trade secrets are protected by statute by virtue of the Civil Code of Québec.

Enforcement of rights and protection stems from the obligation of confidentiality or a fiduciary duty rather than treatment of trade secrets as property. The general rule is that a recipient of confidential information may only use it for the purpose for which it was given.

Chile

The protection of trade secrets is regulated by the Law 19,039 of Industrial Property, as part of the specific provisions on the protection of confidential information. Trade Secrets are protected with the same legal framework as Trademarks, with the sole difference that for Trade Secrets there is no need for registry.

China

Trade secrets are mainly protected under the PRC Anti-Unfair Competition Law. The State Administration of Market Supervision also issued Certain Regulations on Prohibiting Infringements upon Trade Secrets.

Colombia

Trade Secrets are governed by Resolution 486 of 2000 issued by CAN.

Czech Republic

Trade secrets are governed by the Civil Code.

Denmark

Trade secrets are governed by the Act on Protection of Trade Secrets (LOV 309 25/04/2018) and the Danish Criminal Code §§ 263-264 (protection of outside intruders) regarding industrial espionage. The Act on Protection of Trade Secrets is based on EU Parliament and Commission Directive EU 2016/943 of June 8, 2016 on Confidential Know-How and Trade Secrets

Finland

Misappropriation of trade secrets or attempting such is forbidden in Sections 3 and 4 of the Trade Secret Act. The Trade Secret Act entered into force in August 2018 and it implements the EU directive on Trade Secrets. The Finnish Penal Code includes provisions on the unauthorized disclosure of a trade secret and trade secret misappropriation.

France

Trade Secrets are governed by the following legal framework:

  • EU Directive 2016/943 on Trade Secrets dated June 8, 2016
  • Part V of the French Commercial Code: Article L. 151-1 et seq.
  • Law No.  2018-670 dated July 30, 2018 implementing the EU Directive 2016/943
  • Decree No. 2018-1126 on Trade Secrets dated December 11, 2018

It is completed by Article 39 of the TRIPS Agreement.

Article L. 621-1 of the French Intellectual Property Code is specifically related to the disclosure of secret manufacturing processes by directors and/or employees.

Germany

Germany was under an obligation to implement the European Directive (EU) 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (Trade Secret Directive) by July 2018. As of the date of this guide, this has not been done, but only a draft act on trade secrets was published, which is closely oriented at the Trade Secret Directive and which is expected to be passed as a law in mid-2019. Until then, the current legislation must be interpreted to be compliant with the Trade Secret Directive.

Most importantly, the definition of "trade secret" from the Trade Secret Directive (and the draft act) is to be applied. According to this, "trade secret" means any information which meets all of the following requirements:

  • It is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question
  • It has commercial value because it is secret
  • It has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret

As the definition of the Directive holds some changes compared to the definition worked out by the German judicial practice in the past, trade secret owners need to account for these changes. Especially, it is now mandatory to have adequate protection measures in place (which was not required previously under German law). Trade secrets can include, for example, business plans, price calculations, financial information, investment plans, business strategies, customer lists and similar information.

Trade secrets are protected against their unfair acquisition, use and disclosure. Such is considered unfair especially where access has been obtained unlawfully; documents, data or materials have been copied without authorization, or where acts against honest commercial practice have been committed. Independent developments, such as through reverse engineering, are not unlawful.

Hong Kong

Common law of confidence is the legal basis for trade secrets protection.

Trade secrets and undisclosed commercial information protection last until the information becomes public knowledge. However, there is no exclusive right for the owner of trade secrets. Competitors are free to independently invent an identical product or exploit the same ideas.

In an employment contract, in the absence of express terms, there will generally be an implied term that an employee should not disclose or use to the detriment of the employer any information obtained in confidence in the course of or by reason of his or her employment.

Hungary

Act LIV of 2018 on the Protection of Trade Secrets.

Act 100 of 2012 on the Criminal Code.

India

There is no specific legislation that protects trade secrets in India. However, it is common for parties to contractually protect their respective trade secrets in compliance with the general provisions of the Contract Act.

India is party to the Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) (1994), which addresses the concept of Trade Secrets, in Article 39. However, India does not currently have any statute or legislation that protects trade secrets. Thus, trade secrets need to be contractually protected.

Indonesia

Law Number 30 of 2000 on Trade Secret is the governing statute for trade secrets in Indonesia.

Ireland

The Trade Secrets Directive (EU) 2016/943 has been implemented in Ireland by the European Union (Protection of Trade Secrets) Regulations 2018. These regulations protect undisclosed know-how and business information (trade secrets) against unlawful acquisition, use and disclosure.

The disclosure of confidential information is governed by common law and/or, where applicable, may be governed by contract.

Israel

The Commercial Torts Law 1999.

Italy

Section 2598 of the Italian Civil Code and Sections 98 and 99 of the Industrial Property Code govern the protection of trade secrets.

The current legal framework governing Trade Secret protection has been slightly amended by Legislative Decree 11 May 2018, No. 63 in order to comply with the provisions set forth in Directive no. 943/2016/UE (so called Trade Secret Directive).

Japan

The UCPA is the main governing law regarding trade secrets. The UCPA does not require any registration or filing of trade secrets to protect them.

Luxembourg

Luxembourg law does not have specific provisions on trade secrets in its labor laws or in its Civil Code.

Protection is offered by means of:

  • Tort Law
  • Unfair Competition Law
  • Criminal Law, the offender must act with the intent to reach a competitive advantage or to cause harm to the owner; violations of trade secrets may constitute theft
  • Contract Law, if an agreement (such as a non-disclosure agreement) was concluded based on good or bad faith of one of the contracting parties (Article 1134 of the Civil Code)

Mexico

Third Title of the Industrial Property Law (Ley de la Propiedad Industrial).

Netherlands

Civil law

In addition, article 6:162 of the Dutch Civil Code provides a basis for action for instance against someone who breached a non-disclosure obligation or who has provoked such a breach. Also, when a third party takes advantage of the breach of someone else's non-disclosure obligation, this can be unlawful.

Contract law, if an agreement (such as a non-disclosure agreement) was concluded with the third party.

Article 7:678 sub I of the Dutch Civil Code, provides that an employee who discloses information about his or her employer's company, which information should have been kept secret, can be dismissed with immediate effect.

Criminal Law

Articles 272 and 273 of the Dutch Criminal Code stipulate the criminal protection of trade secrets.

European developments

On June 8, 2016, following a proposal from the European Commission, the European Parliament and the Council adopted a directive that aims to standardize the national laws in EU countries against the unlawful acquisition, disclosure and use of trade secrets.

The directive harmonizes the definition of trade secrets in accordance with existing internationally binding standards. It also defines the relevant forms of misappropriation and clarifies that reverse engineering and parallel innovation must be guaranteed, given that trade secrets are not a form of exclusive intellectual property right.

Without establishing criminal sanctions, the proposal harmonizes the civil means through which victims of trade secret misappropriation can seek protection, such as:

  • Stopping the unlawful use and further disclosure of misappropriated trade secrets
  • The removal from the market of goods that have been manufactured on the basis of a trade secret that has been illegally acquired
  • The right to compensation for the damages caused by the unlawful use or disclosure of the misappropriated trade secret

EU countries must bring into force the laws and administrative provisions necessary to comply with the Directive by June 9, 2018. As stated above. The EU Trade secrets directive was enacted in the Netherlands in October 2018.

New Zealand

Trade secrets are governed by common law protection of confidential information, but often plaintiffs will be able to rely on contractual arrangements and also employment law.

Norway

The protection of trade secrets are governed by the Norwegian Marketing Act (No: markedsføringsloven) and the Criminal Code (No: straffeloven).

The Norwegian Ministry of Justice and Public Security is currently reviewing the Directive 2016/943 of the European Parliament and of the Council June 8, 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure. This Directive will enter into force in the EU on June 9, 2018, and the Ministry is considering how it will implement this Directive into Norwegian law. On November 26, 2018, the Ministry drafted proposition for a new Act on the Protection of Trade Secret, which currently is distributed among relevant stakeholders for consultation. The proposed new Act would repeal the current scattered legal framework and consolidate the laws into the proposed Act on Trade Secrets.  

Poland

The Act on Combating Unfair Competition. 

Portugal

Trade secrets are governed by:

  • Title III, Chapter II of the Industrial Property Code (Articles 313 to 315)
  • Articles 195 to 197 of the Criminal Code

Romania

Trade secrets are protected under Law no. 11 of January 29, 1991 on fighting unfair competition.

Russia

Part IV of the Russian Civil Code governs trade secrets.

Saudi Arabia

Trade secrets are governed by the Regulations for the Protection of Confidential Commercial Information issued by Ministry of Commerce and Industry Decision No. 3218 (as amended), passed in 2005 (Trade Secrets Regulations).

Singapore

The law on the protection of confidential information protects ideas and information not in the public domain, including trade secrets. This law is not codified in Singapore and is generally contractually controlled.

Slovak Republic

Business secret is regulated by the Commercial Code.

South Korea

Trade secrets are protected by the UCPA and the Act on Protection and Prevention of Disclosure of Industrial Technology (Industrial Technology Act) in Korea.

Spain

Trade secrets are mainly protected in Spain under the Unfair Competition Act, the Criminal Code and TRIPS Agreement (Spain being signatory since 1995) containing provisions specifically aimed at trade secrets.

There are also other laws which deal with trade secret protection, such as the employment laws establishing secrecy obligations of directors/employees.

Sweden

In 2018, a new Act on Trade Secrets (2018:558) (Lag om företagshemligheter) entered into force, replacing the older Act from 1990. The Act governs trade secret protection and the new Act is based upon an initiative from the European Union, which broadly strengthens the protection of trade secrets. The strengthened protection means, among other things, that more attacks on business secrets are considered unlawful and that the obligation to pay damages has extended. However, for information to be classified as secret, the new Act sets up a requirement that the holder of the information must take reasonable steps in order to keep the information secret.

However, there have been no changes regarding the provisions listed below.

Switzerland

Protection of trade secrets is addressed by the Federal Unfair Competition Act, Code of Obligations and Criminal Code.

Taiwan

The Trade Secret Act was first introduced and came into force in Taiwan on January 17, 1996.

Ukraine

The legal landscape for the trade secret protection in Ukraine includes the Civil Code of Ukraine dated January 16, 2003 and Commercial Code of Ukraine dated January 16, 2003. Additionally, the rules of Agreement on Trade-Related Aspects of Intellectual Property Rights are applied in Ukraine.

United Arab Emirates

Trade secrets are addressed by Federal Law No. 3 of 1987 (Penal Code), Federal Law No. 5 of 1985 as amended (Civil Code), and

Federal Law No. 8 of 1980 as amended by Federal Law No. 8 of 2007 (Labor Law).

United Kingdom

Trade secrets are governed by the Trade Secrets (Enforcement, etc.) Regulations 2018 and case law.

United States

The DTSA creates a trade secret action under federal law that is intended to supplement, rather than preempt, state laws.

The UTSA has been adopted by 48 states, the District of Columbia and the US Virgin Islands. Some states have slightly broader or narrower definitions of trade secrets than others. The remaining states (New York and Massachusetts) have adopted the approach taken by Section 757 of the Restatement of Torts.