SOUTH KOREA Law and Practice Contributed by: Dongju Kwon, Changkwon Kim, Sejung Lee and Yoon Sun Kim, Yoon & Yang LLC
1. Legal Framework 1.1 Sources of Legal Protection for Trade Secrets In Korea, trade secrets are protected under the Unfair Competition Prevention and Trade Secret Protection Act (UCPA). The UCPA defines trade secrets and trade secret misappropriation, among others, and provides remedies for trade secret misappropriation, including: • injunction; • damages; • restoration of reputation of a trade secret If a trade secret constitutes “industrial technol- ogy” under the Act on Prevention of Divulgence and Protection of Industrial Technology (ITPA), it would additionally be protected under such Act. Further, other laws may apply to trade secrets depending on the nature and relations between a trade secret owner and misappropriator, and on the form of misappropriation, including: • the Act on Support for Protection of Tech - nologies of SMEs; • the Monopoly Regulation and Fair Trade Act; • the Fair Transactions in Subcontracting Act; • the Act on the Promotion of Mutually Benefi - cial Co-operation Between Large Enterprises and SMEs; and • the Act on the Investigation of Unfair Interna - tional Trade Practices and Remedy Against Injury to Industry. The UCPA does not distinguish between national and local levels for regulation. owner/holder; and • criminal penalties.
1.2 What Is Protectable as a Trade Secret The UCPA defines a trade secret as “a produc- tion method, sales method or any other useful technical or business information in other busi- ness activities which is unknown to the public, has independent economic value and has been managed as a secret” (Article 2(ii)). Any type of useful technical or business informa - tion may be protected as a trade secret as long as it satisfies the foregoing requirements under the UCPA. 1.3 Examples of Trade Secrets Examples of technical information include meth - ods of manufacturing objects (such as methods for mixing raw materials) and methods of using objects for new uses. Examples of business information include: • customer lists; • business plans, such as investment plans; and • organisational management techniques, such as personnel management techniques. 1.4 Elements of Trade Secret Protection For trade secret protection under Article 2(ii) of the UCPA, information should: • be unknown to the public; • have independent economic value; and • be managed as a secret. Information is unknown to the public if it can - not normally be obtained without acquiring it from the information owner as the information is not widely known to many unspecified persons – which would be the case if, for example, the information had been published.
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