JAPAN Law and Practice Contributed by: Makoto Hattori, Rikita Karakawa, Wataru Takagishi and Taku Shibazaki, Abe, Ikubo & Katayama
• product blueprints and manufacturing methods; and • programme source code. 1.4 Elements of Trade Secret Protection Injunctions Article 3, paragraph 1 of the UCPA provides for injunc - tive relief, as follows. “A person whose business interests have been infringed on or are likely to be infringed on through unfair competition may make a claim to suspend or prevent that infringement against the person that infringed or is likely to infringe on those business interests”. To be granted an injunction, it must be established that an “Unfair Competition”, as defined in Article 2, paragraph 1 of the UCPA has occurred or is likely to occur. Specifically, the act must fall under any unfair competition related to trade secrets specified in Arti - cle 2, paragraph 1, Items (iv) through (x). Damages Article 4 of the UCPA provides for claims for damages, as follows. “A person that intentionally or negligently infringes on the business interests of another person through unfair competition is liable to compensate loss or damage resulting therefrom; provided, however, that this Article does not apply to loss or damage resulting from the act of using trade secrets or shared data with limited access after the rights prescribed in Article 15 have extinguished pursuant to the same Article”. In this case also, it is necessary that unfair competition as defined in Article 2, paragraph 1 of the UCPA has occurred or is likely to occur; in addition, it is neces - sary to allege and prove “intent or negligence” and “occurrence of damages”. 1.5 Reasonable Measures As stated in 1.2 What Is Protectable as a Trade Secret , in order for certain information to receive protection as a trade secret, it is necessary to sat - isfy the requirement of Secret Management. Whether the requirement of Secret Management is satisfied is
determined by comprehensively considering various circumstances, such as the nature of the information, the form of its possession, and the size of the com - pany holding the information, from the perspective of whether reasonable secret management measures were implemented. The following are specific examples of measures required to satisfy the requirement of Secret Manage - ment. • Paper Media – physically segregating confidential documents from general information, storing them in a locked location and applying a confidentiality label (eg, “Confidential” or “Secret”). • Electronic Media labelling storage media (USB drives, CD-Rs) as “Confidential”, adding “Confi - dential” notations to electronic data headers, and implementing access restrictions to the storage locations of such media. On the other hand, if the information is accessible to any employee, there is a high probability that the requirement of Secret Management will be deemed not satisfied. The Ministry of Economy, Trade and Industry (METI) has formulated the “Trade Secret Management Guide - lines”, which set forth the minimum standards required to receive protection as a trade secret under the UCPA. This guideline is useful when con - sidering measures to protect trade secrets. 1.6 Disclosure to Employees As stated in 1.2 What Is Protectable as a Trade Secret , in order for certain information to receive protection as a trade secret, the requirement of Secret Manage - ment must be satisfied. As stated in 1.5 Reasonable Measures , limiting the scope of employees who can access information is a key practice for satisfying the requirement of Secret Management. If information is disclosed without restriction to employees who have no need to access it, the requirement of Secret Man - agement may be denied on the grounds that it is not being appropriately managed as a secret within the company. 1.7 Independent Discovery Independent Development If a third party other than the holder of a trade secret independently develops similar information, the
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