A Study on the Trade Secret Disputes of Foreign Investors in China

• Main Authors: LIN, CHAO-JU, 林昭如
• Other Authors: CHANG, CHUNG-HSIN
• Format: Others
• Language: zh-TW
• Published: 2018
• Online Access: http://ndltd.ncl.edu.tw/handle/7n7868

碩士 === 東吳大學 === 法律學系 === 106 === Contrary to trademarks and patents, have the right protection scope as clearly set forth in the certificate, trade secrets are protected without registration, that is, trade secrets can be proected without any formalities. Accordingly, a trade secret can be protected for an infinite period of time. In accordance with TRIPS, Trade secrets are defined as information that (a) is secret in the sense that it is not generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question. (b) has commercial value because it is secret.(c) has been subject to reasonable steps to keep it secret. In China, a trade secret is defined in the Chinese Anti-Unfair Competition Law. According to Article 9 of this Law, trade secrets are defined as any non-public information with commercial value and that is guarded by confidentiality measures. As a result, in order for the information to be a trade secret, it must (a) not be known by the general public; (b) give the person lawfully a competitive advantage or be capable of generating economic benefit; and (c) the owner must take reasonable measures to protect the confidentiality of the information. All three are typically essential elements to a trade secret claim. The scope of the trade secrets is basically unlimited; as a result, it is necessary to identify carriers of all material information, and specific for the specified trade secrets.It is the first requirement on the information so as to be considered as a trade secret, and furthermore the plaintiff in a trade-secret case lawsuit must prove the specific content of alleged trade secrets, but cannot allege everything of plaintiff are trade secrets; otherwise, the court would reject the suit.It is enough the trade secret is not known to the public.The plaintiff must provide evidence that reasonable measures were taken to keep such information secret, and minimize the risk in potencial disclosure. In order to qualify for trade secrets protection, there are two main requirements. First, the trade secret owner is required to specifically identify the information it seeks to protect, and then it must prove that the information it seeks to protect has adopted secret-keeping measures. However, the People's Court thus far have not articulated a uniform set of standards and guidelines to define either what information is not known to public with commercial value, or what measures are reasonable to keep information in secrecy.The study would analyze the Chinese judgments to understand the opinions of the People's Court’s on these issues by cases. Moreover, the study would introduce Chinese legal system providing protection for trade secrets, and help enterprises build trade secrets protection awareness, develop rules and regulations and take practical measures to safeguard their own trade secrets, besides giving better play to the civil, administrative and criminal protection in trade secrets protection. Finally, enterprises can get these sources involve in internal control to prevent future disclosure of trade secrets.