JAPAN Law and Practice Contributed by: Makoto Hattori, Rikita Karakawa, Wataru Takagishi and Taku Shibazaki, Abe, Ikubo & Katayama
cisable, namely, the time the defendant gained the benefit through the unauthorised use. Criminal Prosecution Period In addition to civil remedies, trade secret misappro - priation may be subject to criminal penalties under the UCPA. The statute of limitations for initiating a crimi - nal prosecution for such offenses is fixed at seven years, commencing from the time the illegal act was completed. 5.3 Initiating a Lawsuit To initiate a trade secret lawsuit, a plaintiff must file a complaint with the competent court and pay a filing fee based on the total amount of the claim. Once the court completes a formal review of the complaint, it serves the complaint to the defendant, marking the official commencement of the lawsuit. While there is no legal requirement to present evidence at the time of filing, plaintiffs may strategically choose to sub - mit substantial evidence early in the process. This approach can help the court establish a clear under - standing of the case’s merits from the outset. 5.4 Jurisdiction of the Courts General jurisdiction for trade secret claims is typically based on the defendant’s place of residence or the location of a legal entity’s principal office. Because trade secret infringement is categorised as a tort, plaintiffs may also initiate proceedings in the court governing the place where the infringing act occurred or where the resulting damage was sustained. Par - ties are also permitted to determine the court of first instance through a written agreement on jurisdiction. Regarding international disputes, Article 19-2 of the UCPA clarifies that Japanese courts can hear cases involving misappropriation that occurs outside of Japan. This applies as long as the trade secrets are managed within Japan and used for business activi - ties in the country. This provision ensures legal protec - tion against cross-border infringement for businesses operating in Japan. Specialised intellectual property (IP) divisions are established within the Tokyo District Court and the Osaka District Court to handle IP litigation including trade secret litigation and preliminary injunction cases
thereof. For these disputes, these courts share con - current jurisdiction with other regional district courts, allowing plaintiffs to choose between a specialised or a general court, depending on the venue rules. The specialised divisions at these courts possess signifi - cant expertise in managing the complex technical and legal issues specific to trade secrets. Furthermore, the Intellectual Property High Court serves as a special - ised appellate court dedicated to handling IP-related appeals, including those involving trade secret dis - putes. 5.5 Initial Pleading Standards The standard of proof in trade secret litigation is a “high degree of probability”. This standard requires the judge to reach a firm belief regarding the truth, plac - ing it below the “beyond reasonable doubt” standard used in criminal cases but above the “preponderance of evidence” standard. Consistent with the initiation process described in 5.3 Initiating a Lawsuit , there is no rigid legal standard requiring a plaintiff to process conclusive evidence at the time of filing. Instead, the plaintiff must even - tually establish the facts as highly probable through the course of the proceedings in order to prevail. It is important to note that certain types of evidence, particularly those relating to the calculation of dam - ages, are often not presented at the initial stage but are introduced later as the trial progresses. In practice, direct evidence of misappropriation is often within the defendant’s control, making it diffi - cult for plaintiffs to obtain. To address this, the UCPA (Article 5-2) provides a legal presumption of unauthor - ised use for technical secrets under specific condi - tions, which effectively assists the plaintiff’s burden of proof. Additionally, plaintiffs can use various judicial mechanisms after filing to access evidence held by the opponent. Specific mechanisms for the physical seizure or preservation of evidence are discussed in detail in 5.6 Seizure Mechanisms and 5.7 Obtaining Information and Evidence . Courts require the specific identification of the trade secret during the pleading stage to ensure the claim is actionable. Vague assertions such as “general know- how” are typically deemed insufficient and may lead
116 CHAMBERS.COM
Powered by FlippingBook