By Luo Yanjie
Article 10 of China <Law Against Unfair Competition> and Article 219 of <Criminal Law> defines “Trade Secret” as “Trade secret means technical information and operational information which is not known to the public, which is capable of bringing economic benefits to the owner of rights, which has practical applicability and which the owner of rights has taken measures to keep secret.” According to the definition, information must have “confidentiality measures” before it becomes trade secret. While in practice, what measures can be identified as legally effective “confidentiality measures ” has no clear standard. Today we would like to share the topic with readers.
I The definition of “confidentiality measures” in the judicial interpretation
<Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in Hearing Civil Cases Involving Unfair Competition> defines the “confidentiality measures” as follows:
The people’s court shall, in accordance with such factors as the characteristics of the information carriers, the confidentiality willingness of theobliges, the identifiable extent of the confidentiality measures, and the difficulty for other people to obtain the information in a proper manner, identify whether the obligees have taken confidentiality measures.
For any of the following events that is sufficient to prevent confidential information from disclosure under normal circumstance, the obligees shall be identified to have taken confidentiality measures:
1. Limit the range where the confidential information can be known. The content of the information shall be only open to relevant people who must know it;
2. Take such preventive measures as locking the carriers of the confidential information;
3. Label confidentiality indications on the carriers of the confidential information;
4. Use passwords or codes for the carriers of the confidential information;
5. Sign confidentiality agreements;
6. Limit visitors to or propose confidentiality requirements as for the machines, workshops, and others locations related to the confidential information.
7. Other reasonable measures to maintain confidential information
II. The Analysis of interpretation
The author Analysis the judicial interpretation as follows:
1, “Confidentiality measures” should adapt to the value of trade secret
Whether information’s confidentiality measures reaching legal standards should be decided by the value of information itself, but not a common standard. For example, the client list may only need a safe deposit box and can be identified as having “confidential measures”, but apparently not suitable for protecting a tremendous valuable technical secret.
2, confidentiality measures must be effective security measures in
Right people can not take the security measures formly, but should take measures can objectively avoid information to public. For example, judicial interpretation stipulates that “Label confidentiality indications on the carriers of the confidential information” is a kind of measures. But if the right person only set “sign” but makes the information file completely in open state. It still will make the information loss the qualification of “trade secrets”.
3, confidentiality measures should be directed at stopping others’ legitimate access.
The establishment of confidentiality measures is mainly directed against the ” legitimate ” access, so the right people also need not worry too much about will giving too much cost. Others obtaining information through illegal means will not make “information” loss “trade secrets” qualification.
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You Yunting
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