JAPAN Law and Practice Contributed by: Junichi Ueda, Etsuko Hara, Nobuto Shirane, Takahiro Hayase, Yutaka Shimoo and Miki Goto, Anderson Mori & Tomotsune
attached to trade secrets, the Unfair Competition Prevention Act protects trade secrets as “legally pro - tected interests”. Japan is a party to: • the Patent Cooperation Treaty; • the Paris Convention for the Protection of Industrial Property; • the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks; • the Hague Agreement Concerning the International Registration of Industrial Designs; • the Berne Convention; • the International Convention for the Protection of New Varieties of Plants; and • other major IP-related treaties. A person that invents an invention with industrial applicability is entitled to obtain a patent for that invention. “Invention” in the Patent Act is defined as a highly advanced creation of technical ideas utilising the laws of nature. A person applying for a patent must submit a written application to the Japan Patent Office. A description, scope of claims, required drawings and a summary must be attached to the application. The legal require - ments for obtaining a patent are: • industrial applicability; • novelty; and • inventive step. A patent right will become effective upon successful registration. The duration of a patent right, in principle, expires after a period of 20 years from the filing date of the original application. The patent holder has an exclu - sive right to commercially exploit the patented invention. As for remedies for infringement, the patent holder may file a claim for: • an injunction; • disposal of infringing compositions, etc; • damages; • restoration of credibility; or • restitution of unjust enrichment.
There are presumptive provisions regarding the amount of damages that may arise as a result of the infringement of patent rights. Acts of importing products that infringe patent rights are subject to border control measures under the Cus - toms Act. Any intentional infringement of a patent right is also subject to criminal penalties. 7.2 Trade Marks An applicant may apply to register a trade mark to be used in connection with goods or services pertaining to the business of the applicant. “Trade mark” in the Trademark Act is defined as: • any character, figure, sign or three-dimensional shape or colour, or any combination thereof; • sounds; or • anything else specified by cabinet order that can be perceived by people. A person requesting a trade mark registration must submit a written application to the Japan Patent Office. Upon filing an application, one or more goods or ser - vices for which the trade mark will be used must be described in the written application. The legal require - ments for the registration of a trade mark are that: • the trade mark is to be used in connection with the goods or services for which the trade mark is registered; • the trade mark is capable of distinguishing itself from other goods or services; and • the trade mark is not unregistrable for reasons of public interest. A trade mark right will become effective upon suc - cessful registration. The duration of a trade mark right is ten years from the date of registration, but may be renewed by the holder of the trade mark right by filing an application for registration of renewal. The holder of a trade mark right will have an exclusive right to use the registered trade mark in connection with the designated goods or designated services. The holder of the trade mark right may also prohibit a third party from using a trade mark that is similar to the registered trade mark.
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