18 October, 2015
Continuing our Vietnam IPR month, today’s post covers the protection of trade secrets in Vietnam.
Remember, trade secrets are only protected as long as they remain outside of the public domain, so the best way to protect them is to limit the availability of the information, and who has access.
What are trade secrets?
Trade secrets are defined in Vietnamese law as ‘information obtained from financial or intellectual investment activities, which has not been disclosed and is applicable in business’
As such, a piece of information falls under the definition of a ‘trade secret’ when:
- It has not been disclosed to the public, and is not common knowledge;
- It gives its owner a business advantage; and
- It remains secret, because the owner has taken sufficient measures to protect the confidentiality of the information
Typical examples of trade secrets include new, unreleased products or business models, special techniques, customer and supplier lists, technical know-how, or recipes, etc. Perhaps the most famous example of a trade secret is the world renowned Coca-Cola recipe, the exact formula for which has remained a closely guarded secret for more than 100 years!
Protection of trade secrets in Vietnam
In Vietnam, there are some classes of information which, whilst falling within the above definition do not attract legal protection as trade secrets. These include:
- Personal status secrets
- State management secrets
- Other confidential information which is not relevant to business
With the exception of the above, trade secrets are protected upon creation, without any need for registration, provided that reasonable measures have been made to keep the information a secret. These measures may include physical measures, such as marking documents as ‘confidential’ or ‘trade secret’, restricting access to them, and locking them away when not in use, technical measures, such as password protecting electronic document storage devices, and controlling and monitoring movement and copying of files, and contractual measures, such as use of Non-Disclosure Agreements (NDAs) with potential partners, and appropriate data protection clauses included in employee contracts.
Enforcement
Trade secrets are a relatively new addition to Vietnamese law, and at time of writing there have been no infringement cases brought before the courts relating to trade secrets. As such, it is unclear how the courts will approach enforcement of potential breaches, however, the legal framework should provide a solid base for any such claims.
Alex Bayntun – Lees, South-East Asia IPR SME-Helpdesk
