Trade secrets are addressed in article 73 of the Angolan Industrial Property Law.
Trade secrets
Legal framework
Angola
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 equitable doctrine of breach of confidence.
Austria
Trade secrets are addressed in a variety of legislation.
Sections 26a – 26j the Unfair Competition Act define trade secrets and regulate their use, misuse and accompanying consequences. It is also possible to hold confidential court proceedings (Section 26h Unfair Competition Act).
Additionally, Sections 122-124 of the Criminal Code penalize the discovery, publication or exploitation of trade secrets in various ways.
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 CEL) of a trade secret (within the meaning of Article I.17/1(1) CEL) 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 CEL
- Civil liability law, namely Sections 1382-1383 of the Civil Code or (in case 2 undertakings are involved) Section VI.104 of Book VI "Market Practices and Consumer Protection" CEL, 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, who receives the information in conditions of confidence, may only use it for the purpose for which it was given.
Chile
The protection of trade secrets is regulated by Law No. 19,039 on Industrial Property. The framework for protection of trade secrets is the same as for the protection of trademarks, except that, for trade secrets, there is no need for registry. In addition, Article 284 of the Criminal Code punishes the fraudulent disclosure of industrial secrets with prison (61 days to 3 years of reclusion) or fines from UTM11 to UTM20 (UTM is an inflation-based accounting currency; UTM11 to UTM20 is equivalent to approximately USD790 to USD1,450).
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 Decision 486 of 2000 issued by CAN, and by Law 256, 1996.
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 § 299 a on the penalty for violation of the Trade Secrets Act under aggravating circumstances and §§ 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; the Act 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 and
- 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
The German Trade Secret Act (Geschäftsgeheimnisgesetz) governs the protection of trade secrets. According to the Trade Secrets Act, a “trade secret” is information:
a. That 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
b. That has commercial value because it is secret
c. That has been subject to adequate measures under the circumstances, by the person lawfully in control of the information, to keep it secret and
d. In regard to which there is a justifiable interest in keeping it
It is mandatory to have adequate protection measures in place. The measures taken by the owner are relevant to assess whether information is protected as a trade secret and the scope of such protection. 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 that have been copied without authorization or where acts against honest commercial practice have been committed. Not unlawful are especially independent developments, also through reverse engineering.
Hong Kong, SAR
There is no statutory regime for protection of trade secrets in Hong Kong. The law of confidence is the legal basis for trade secrets protection. The parties must prove 3 elements to establish a claim for breach of confidence, namely:
- the information must have the necessary quality of the confidence, ie it must not be something which is public property and public knowledge
- the information must have been imparted in circumstances which impose an obligation of confidence – ie, any reasonable person standing in the shoes of the recipient of the information would have realized that the information was confidential, and
- there must be an unauthorized use of that information to the detriment of the party communicating it.
The mere fact that the parties described or labelled the information as “confidential” will not be conclusive or determinative as to whether the information would be protected under the law of confidence. In an employment contract, even 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 their employment.
Hungary
Act No. 54 of 2018 on the Protection of Trade Secrets.
Act No. 100 of 2012 on the Criminal Code.
India
There is no specific legislation that protects trade secrets in India, and Indian courts have upheld trade secrets protection under various statutes, including contract law, copyright law, the principles of equity and the common-law actions of breach of confidence and misappropriation under tort law. 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) of 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 must be contractually protected.
Indonesia
Law Number 30 of 2000 on Trade Secret (Trade Secret Law) 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 (the 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
While remedies for trade secret infringements used to be governed by tort law (article 1382 of the Civil Code), unfair competition law (Competition Act of 23 October 2011) and general criminal law (article 309 of the Criminal Code), as well as contract law (article 1134 of the Civil code) under the Trade Secrets Act, the trade secret holder may make use of measures and remedies, such as:
- Prohibitory injunctions
- Damages
- Corrective measures (eg, the destruction of the infringing goods)
Mexico
Third Title of the Federal Law for the Protection of Industrial Property (Ley Federal de Protección a la Propiedad Industrial).
Netherlands
Civil law
In addition, 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. In addition, when a third party takes advantage of the breach of someone else's non-disclosure obligation, it may 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 that should have been kept secret about their employer's company may be dismissed with immediate effect.
Criminal Law
The Dutch Criminal Code stipulates 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.
Nigeria
No text yet.
Norway
The protection of trade secrets are governed by the Norwegian Trade Secret Act (forretningshemmelighetsloven).
The Trade Secret Act incorporates Directive 2016/943 of the European Parliament and of the Council June 8, 2016 on the protection of undisclosed know-how and business information (ie, trade secrets) against their unlawful acquisition, use and disclosure. The Act repeals the previously scattered legal framework and consolidates the law into one Act. The Trade Secrets Act introduced new enforcement alternatives. Trade secrets shall have the same meaning under the new law.
Peru
N/A
Philippines
The IPC, as interpreted by the Philippine Supreme Court, protects trade secrets as intellectual property right under undisclosed information.
A trade secret is defined as a plan or process, tool, mechanism or compound known only to its owner and those of their employees to whom it is necessary to confide it. The definition also extends to a secret formula or process not patented, but known only to certain individuals using it in compounding some article of trade that has a commercial value.
A trade secret may consist of any formula, pattern, device or compilation of information that (1) is used in one's business and (2) gives the employer an opportunity to obtain an advantage over competitors who do not possess the information. Generally, a trade secret is a process or device intended for continuous use in the operation of the business – for example, a machine or formula – but can be a price list or catalogue or specialized customer list. It is indubitable that trade secrets constitute proprietary rights. The inventor, discoverer or possessor of a trade secret or similar innovation has rights therein which may be treated as property, and ordinarily an injunction will be granted to prevent the disclosure of the trade secret by one who obtained the information "in confidence" or through a "confidential relationship.”
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 governed by Urgency Ordinance no. 25 of April 18, 2019 on the protection of know-how and undisclosed business secrets that are commercial secrets against unlawful acquisition, use and disclosure, as well as for the amending and completion of other normative acts and 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
There is no statutory regime for protection of trade secrets in Singapore. Trade secrets and confidential information are generally protected by contractual obligation between the parties and by the law of confidence under common law, which protects ideas and information that are not in the public domain, including trade secrets.
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 Trade Secrets Act 1/2019, the Unfair Competition Act, the Criminal Code and TRIPS Agreement (Spain being signatory since 1995) contain also 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 or the Patents Act 24/2015.
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 been extended. However, for information to be classified as a trade 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 (eg, by way of confidentiality agreements).
Under the new Act the definition of a "trade secret" has been slightly revised to exclude the experience and skills gained by employees in the normal course of their employment. As such, the employee shall be free to use the obtained knowledge in the course of a new employment.
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, China
The Trade Secret Act was promulgated on January 17, 1996.
Ukraine
The legal landscape for trade secret protection in Ukraine includes the Civil Code of Ukraine dated January 16, 2003 and Commercial Code of Ukraine dated January 16, 2003. In addition, the rules of the 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 pre-empt, state laws.
The UTSA has been adopted by 49 states, the District of Columbia, Puerto Rico and the US Virgin Islands, though some states have slightly broader or narrower definitions of trade secrets than others. The remaining state, New York, has adopted the approach taken by Section 757 of the Restatement of Torts.
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