Trade secret, trade name

I. TRADE SECRET

1. General

Trade secrets are defined as information obtained from financial, intellectual investment which is undisclosed and susceptible to application in business, provided that must meet the following criteria:

(i)    The information is neither common knowledge nor easily obtained; and

(ii)   To be capable, when being used in the business course, to render advantages to its holder over those who do not hold or use it; and

(iii)  They are confidentially kept by the holders with necessary measures so that such information will neither be disclosed nor easily accessible.

The exceptions from being protected as trade secrets:

(i)    Personal status secrets;

(ii)   State management secrets;

(iii)  Security and national defense secrets;

(iv)  Other confidential secret information irrelevant to business.

2. Rights and obligations of trade secret holder

The holders of the trade secrets are all organizations and individuals who have legally acquired the trade secrets the trade secrets and keep it confidential. A trade secret acquired by an employee or a party carrying out the assigned duty during performance of assigned duties shall belong to the employer or the duty assignor, unless otherwise agreed by the parties.

The holders of the trade secrets are entitled to use their trade secrets by applying them to manufacture products, supplying services or trade in goods or selling, advertising for sale, storing for sale and importing a product obtained by applying the trade secret. Such rights shall be protected during the time such trade secrets still satisfy the said criteria of the trade secrets.

Limitations of the rights of an trade secret holder include exemption from rights for (i) disclosure or use of a trade secrets acquired without knowing or having reason to know that it has been illegally acquired by others; (ii) disclosure of the trade secrets in order to protect the public; (iii) use of secret data for non-commercial purposes; (iv) disclosure or use of a trade secrets created independently; and (v) disclosure or use of trade secrets generated by analyzing or evaluating a legally distributed products; unless otherwise agreed between the analyzers or evaluators and the owner of the trade secret or the sellers of the product.

3. Infringement

Infringement of trade secrets entails knowingly disclosing or using the business secret for commercial purposes without permission from the owner of the secret and/or breaching a contract with said owner over the agreed concealment of said secret.

II. TRADE NAME

1. Definition

Trade names are defined as the designation of the organizations, individuals which is used in business activities to distinguish the business entity bearing such a designation from other business entities engaging in the same field and area of business and which satisfy the following criteria:

(i)   It consists of proper name, except where it has been widely known as a result of use; and

(ii)  It is not identical with or confusingly similar to another person’s trade name prior used in the same field and locality of business; and

(iii) It is not identical with or confusingly similar to another person’s trademark or a geographical indication having been protected prior to the date such trade name is used.

Please note that name of administrative, political, social, professional agencies and organizations or of the subjects which do not relate to the business activities shall not be protected as trade name under our law.

2. Right and obligation of tradename holder

The holders of the trade names are the organizations/individuals who legally use such trade names in the course of business. The holders are entitled to use the trade names for the business purposes, presenting the trade names in the transaction papers, documents, signboards, products, commodities, package and advertisement.

The trade names are protected as long as the holders of the tradename still maintain their business operation under such names.

3. Infringement

According to our current IP law, the acts of using commercial indication identical with or similar to another person’s trade name prior used for the same or similar goods/services that leads to confusion as to business entities, business premises or business activities under the trade name shall be considered as infringement of the rights on the trade name. The holder of such trade name thereby shall have the right to request the infringers to stop the infringing acts, apologize, publicly rectify and pay compensation and/or to request the competent authorities to settle acts of infringement or file a suite at a competent court or an arbitrator for protection their legitimate rights and interest.