JAPAN Law and Practice Contributed by: Miki Goto, Ryo Murakami and Akihito Ishii, Anderson Mori & Tomotsune
Anderson Mori & Tomotsune Otemachi Park Building 1-1-1 Otemachi Chiyoda-ku Tokyo 100-8136 Japan Tel: +81 367 751 000 Web: www.amt-law.com
1. Legal Framework 1.1 Sources of Legal Protection for Trade Secrets The Unfair Competition Prevention Act (UCPA) specifically provides for the protection of trade secrets in Japan. Trade secrets may also be protected under the general rule of torts, unjust enrichment, and con - tracts set forth in the Civil Code. The UCPA is understood to be a specific and prevailing rule under the general rule of torts, and the general aspects of the exercise of rights under the the UCPA may be governed by the Civil Code. 1.2 What Is Protectable as a Trade Secret “trade secret” is defined in the UCPA as “a pro- duction method, sales method, or any other technical or operational information useful for business activities that is under management as a secret and is not publicly known” . • Controlled under management as a secret (protective measures) – the information must be under management as a secret by appro - priate measures that are deemed reasonable
under the specific circumstance, in a manner that the owner’s intention to maintain secrecy can be objectively recognised by those hav - ing access to the information, such as the employees. The owner’s subjective intention to keep the information as a secret is not suf - ficient to meet this requirement. • Usefulness (commercial value) – the actual use of the information in an ongoing business activity by the owner is not essential; how - ever, the owner must show that the informa- tion is at least potentially useful for business activities in the future based on objective standards. • Not being generally known to public (secrecy) – the information must not be publicly acces - sible or easily obtainable by a third party. 1.3 Examples of Trade Secrets Article 2 Clause 6 of the UCPA defines trade secrets as “production method, sales method, or any other technical or operational informa- tion useful for business activities” . Production method is understood to include information such as the manufacturing methods, blueprints and other technical know-how regarding manu - facture. Sales method is understood to include information such as price lists, customer and supplier information, and sales manuals.
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