What is the current status and measures of trade secret protection in my country
my country's Anti-Unfair Competition Law confirms that commercial Secret property attributes and stipulates that the infringer shall be liable for compensation. This shows that trade secret rights are a kind of property right, that is, the legal controller of a trade secret takes confidentiality measures and has the exclusive right to use its business information and technical information in accordance with the law. Different from tangible property rights, the object of trade secret rights is a kind of intangible information, which does not occupy a certain space and does not cause tangible loss. Therefore, its right is an intangible property right. As far as the content of rights is concerned, the obligee of a trade secret, like the owner of tangible property, enjoys the right to possess, use, benefit and dispose of it in accordance with the law, that is, he has the right to control and manage the trade secret and prevent others from obtaining and using it through improper means. Trade secrets; the right to use one's own trade secrets in accordance with the law without interference from others; the right to obtain corresponding economic benefits by using one's own trade secrets or permitting others to use them or even transferring ownership; the right to dispose of one's own trade secrets, including giving up possession , free enlightened gift or transfer, etc.
Infringement of trade secrets means that the perpetrator has not With the permission of the obligee (the legal controller of the trade secret), the act of obtaining the trade secret by illegal means and using it. The actors here include: the parties to the contract who have the agreed confidentiality obligation; the third party who commits the infringement; the infringement of this The perpetrator of the unit’s trade secrets. The so-called illegal means include: direct infringement, that is, stealing trade secrets directly from the right holder and disclosing or using them; indirect infringement, that is, stealing the right holder's trade secrets through a third party and disclosing or using them.
Measures for the protection of trade secrets
On the one hand, companies need to improve their own protection awareness and strengthen protective measures to prevent the leakage of trade secrets. Companies and employees within the company should first strengthen their understanding of trade secrets. The company must subjectively agree with the company's own trade secrets. In legal theory, the concept of trade secrets is the unity of "subjective secrets" and "objective secrets". If the company itself does not subjectively believe that certain information is a trade secret, It is impossible to emphasize that the information is objectively a trade secret. For example, if a company announces a preferential price that should be provided to certain customers through advertisements, this quotation cannot be said to be a trade secret, because the company subjectively Do not agree that this is a secret, otherwise it would be impossible to publicize it widely. On the basis of subjective recognition, enterprises must strengthen relevant confidentiality measures. Common confidentiality measures include: isolation measures within the enterprise (such as: setting up a confidential database, establishing electronic monitoring installation, restricting visitors or customers from contact with core samples or production tools, etc.); reducing employees' business knowledge (i.e., controlling the information possessed by employees within the necessary scope and minimizing the opportunities for employees to understand other business information); Keep and destroy documents; strictly control the procedures for releasing information to the outside world. The enterprise should establish an internal confidentiality system and inform all employees. All confidentiality measures within the enterprise can not only strengthen the subjective recognition of business secrets by internal personnel, but also further improve the objective This reflects the confidentiality of trade secrets. This provides a basic basis for the protection of trade secrets.
On the other hand, any transaction contract or agreement involving corporate trade secrets should have a "confidentiality clause". The so-called "confidentiality clause" means that through the contract In the form of adding a confidentiality obligation to the other party of the contract. This confidentiality obligation is usually equal to both parties. If the other party to the contract discloses our business secrets that were mastered due to the signing and performance of the contract, it constitutes a breach of contract and requires corresponding liability. Liability for breach of contract. Common need to establish confidentialityContracts with terms include: sales contracts, service contracts, intermediary contracts, processing contracts, etc. A standard confidentiality clause (or it can be a separate confidentiality agreement) should contain the following content:
(1) Express the scope of the business secrets involved in the contract that need to be kept confidential; (2) The other party to the contract and any employees and agents of the other party are bound by the confidentiality clause; (3) Bound confidentiality The obligor shall not disclose business secrets to any third party or use them for purposes other than the purpose of the contract without permission; (4) The bound confidentiality obligor shall not carry materials, documents, physical objects, etc. containing confidential information. Leave the confidential area; (5) The confidentiality obligor shall not involve the business secrets specified in the contract when accepting external interviews or communicating with any third party; (6) Unrelated employees shall not have access to or learn about business secrets; (7) Confidential information shall be Return it after the termination of the contract; (8) The confidentiality period shall remain effective after the termination of the contract; (9) Anyone who violates the confidentiality obligation shall bear clear liability for breach of contract. It is worth noting that the focus of trade secret protection lies within the enterprise. Enterprise employees, especially technical personnel and managers who have a large amount of information about the enterprise, are bound to be talents that other enterprises are competing to "exploit". The leakage of trade secrets due to the resignation or dismissal of corporate employees is common in real life. Therefore, in addition to formulating confidentiality systems and publicizing them to employees, companies must also require employees to sign confidentiality clauses or agreements when signing labor contracts, which is also the main confidentiality measure that companies should take. The confidentiality clause or confidentiality agreement attached to the employee's labor contract strengthens the employee's awareness and obligation of confidentiality and can effectively prevent employees from actively leaking business secrets to other opponents. Confidentiality clauses and confidentiality agreements signed with employees should be specific, and the scope of trade secrets and confidentiality procedures required of employees must be determined, and certain potential leakage behaviors of employees should be restricted through clauses or agreements. For example, a sales executive of a company used his spare time to participate in a paid seminar, at which the sales executive introduced the sales experience and technology in his industry to the attendees in a personal capacity. Since the labor contract signed between the company and the sales executive did not clearly stipulate the scope of trade secrets and the confidentiality measures that need to be paid attention to, the company appeared to be very passive when pursuing the responsibility of the sales executive.
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