Protecting Trade Secrets In Thailand

29 December, 2015

 

In today’s fast paced and information reliant world of business, trade secrets can make or break a company’s chances for success.

 

Now everybody knows that the best way to keep a secret is… well to keep it secret. But if you absolutely have to tell somebody, this article should give you some pointers on how to protect your business against information leakage in Thailand.

 

At the Helpdesk we always advise that SMEs seek professional legal advice when dealing with complex issues, and this is never more important than when drafting contracts and Non-Disclosure Agreements etc. However, if you need some help finding appropriate legal help, or just need some pointers as to what you should be looking for, get in touch with our experts today!

What are trade secrets?

 

In simple terms, a ‘trade secret’ is any information in the field of technology and/or business which is maintained confidential by its owner and has economic value when used in business activities. Such information can include methods of productions, methods of processing, sales methodology, customer databases, product recipes, or any other information with potential economic value.

 

Trade secrets in Thailand

 

Trade secrets have enjoyed express protection in Thailand since 2002 and is currently under review again by the Parliament.

Trade secrets are ‘unregistered rights’ and as such do not require registration to be protected by That law. However, unlike most jurisdictions, trade secrets can be recorded with the Thai Department of Intellectual Property (DIP). Only basic information is required for this recordal, and efficient recording strategies can be set up without actually disclosing essential contents of the trade secret.

Trade secrets are protected (whether registered or unregistered) provided that they fulfil three specific criteria, as follows:

 

• The information is confidential (i.e. non-public)
• It has real or potential economic value
• Necessary measures have been taken to protect its secrecy.

 

The third criteria is met by companies’ introduction and adherence to standard procedures for data protection. These procedures must cover physical, technical, and contractual measures in order to be effective;

 

Physical measures: These usually consist of exercise of control over physical documents, for example marking sensitive material as ‘confidential’ or ‘trade secret’, controlling who has access to these documents, and locking material away when not in use.

Technical measures: These include the setting up of controls over access to electronic information, including password protection of servers or folders in which sensitive material is kept, installation of adequate firewall software etc.

 

Contractual measures: These measures relate directly to staff and partner concerns. All employment contracts should include adequate provisions for the non-disclosure of any sensitive material that the employee may be given access to, especially those who will be working directly with this data. Furthermore, any partners, e.g. local manufacturers etc should be asked to sign Non-Disclosure Agreements (NDAs) prior to any exchange of information.

As long as information is adequately protected there is no time limit to trade secret protection, however the legal protection lapses as soon as the information becomes widely known or public knowledge. As such, enforcement proceedings against suspected parties promptly before any material is released.

 

Companies can assist the courts by having their own security monitoring in place, including CCTV recording and recorded entry/exit data of rooms where physical documents are held, as well as electronic monitoring of file access and copying etc.