How can businesses or individuals protect their trade secrets?

1. Self-protection

Looking at the giant corporations involved in the food and beverage industry that have grown and grown thanks to unique business secrets, we can see the most obvious presences are Coca Cola, KFC, Lotteria or Mcdonald's... All of these large corporations use extremely strict protection of their business secrets to keep their recipes, but one thing in common is that they all use self-protection methods.

This method of self-protection under Vietnamese law is recognized in Article 198, chapter XVI: General provisions on protection of intellectual property rights of the 2005 Intellectual Property Law as the ultimate right of the owner in Protect your own intellectual property rights, including

• Apply technological measures to prevent infringement
• Require infringing individuals and organizations to apologize, make public corrections, compensate for damages, and especially stop infringing acts.
• File a lawsuit in court
• Request competent state agencies to handle infringements

In addition, the owner of a business secret can also request the competent authority to apply civil or administrative regulations on handling competition violations according to the Competition Law 2018. If the infringement If violating a business secret is enough to constitute a crime, that act can also be regulated by criminal law.

2. Register a patent

Because there are currently no regulations on registration of intellectual property protection for business secrets, in addition to self-protection, business secret owners can also protect business secrets. through patent registration.

However, registering as an invention will always have certain disadvantages.

Firstly, in Vietnam, registering a patent will be very difficult because the intellectual product must have never appeared before, that is, it must be completely new and highly creative.

Second, when registering a patent, there will always be a certain deadline and there will be a fee to maintain the patent, specifically for patents, the term will be 20 years from the date of filing. A utility solution patent has a term of 10 years from the date of filing. After this term, the owner will not be able to renew (according to Circular 16/2016/TT-BKHCN) and intellectual property will not be protected Moreover, this is a huge disadvantage if an individual or business wants to develop that business secret to carry out long-term business in the future (according to the provisions of Clauses 2 and 3, Article 93 and Clause 1, Article 94 of the Law Intellectual Property 2005 revised in 2009).

3. Exception for trade secrets

In this section, the owner may not prohibit other entities from performing the following acts even though the owner believes that these are acts of infringement of his or her business secrets.

Those acts are specified in Clause 3, Article 125 of the 2005 Intellectual Property Law:

“a) Disclosing and using business secrets obtained without knowing and without obligation to know that business secrets were obtained illegally by others;

b) Disclosing confidential data to protect the public according to the provisions of Clause 1, Article 128 of this Law;

c) Using confidential data specified in Article 128 of this Law for non-commercial purposes;

d) Disclosing and using independently created business secrets;

d) Disclosing and using business secrets created by analyzing and evaluating legally distributed products, provided that the analyst or evaluator has no other agreement with the owner of the business secret or salesman."