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  • Intellectual property framework

    Overview

    Intellectual property is a right protected by the Constitution of the Republic of Angola. The fundamental intellectual property framework in Angola is provided in 2 main acts: the Legal Regime for the Protection of Copyright and Related Rights and the Industrial Property Law.

  • Commercial contract framework

    Overview

    Angolan law lays down a general principle of contractual freedom, which means that parties are mostly free to establish the terms and conditions to be observed by the contracts they enter into (exceptions are made to mandatory rules legally imposed which will depend on the specific contractual relationship) and are entitled to enter into contracts provided for in the law, but also into contracts that are not provided for in the law.

    Angolan law does not establish a unitary act or set of rules applicable to all commercial contracts. Depending on the specific contractual relationship, commercial contracts may be subject to the provisions of the Civil Code, Commercial Code, Copyright and Related Rights Law, and the Industrial Property Law as well as other specific legislation.

    The aforementioned set of rules changes according to the specific contract in question.

  • Copyrights

    Nature of right

    Copyright covers original literary, scientific and artistic intellectual creations, or works. Registration is not required for the acquisition or maintenance of copyright rights; however, there are certain specific copyright-related acts subject to registration in order to be valid.

    In Angola, copyright comprises economic and moral rights.

    In the scope of economic rights, copyright owners have the exclusive right to use, enjoy and dispose of their work, or to authorize the use of the work, wholly or in part, by third parties.

    Moral rights consist in the right to claim authorship of the work, as well as the right to ensure its genuineness and integrity.

    Legal framework

    Copyrights are governed by Law No. 15/14 of July 31, which introduced the Legal Regime for the Protection of Copyright and Related Rights.

    Duration of right

    As general rule, moral copyrights are unlimited in time and, therefore, are inalienable and imprescriptible. With respect to economic copyrights, copyright protection lasts for a term of 70 years, counted as of January 1 of the first year after the death of the author, as well as through the life of the author.

    In the case of works in collaboration, copyright expires 70 years after the death of the last surviving author. As per collective works or works originally assigned to a corporate person, copyright expires 70 years from the date of the first licit publication or disclosure, except if the individuals who create it were identified in the version of the work available to the public.

    For an anonymous work, or work that was legally published or disclosed without identifying the respective author, protection is for 70 years after publication or disclosure.

    Please note that, with respect to applied arts and photographic works, economic copyrights protection lasts for a term of 45 years, counted as of January 1 of the first year after the death of the author.

    Economic copyrights related to a broadcaster last up to 35th calendar year after the broadcast.

    Ownership / licenses

    Moral rights are inalienable.

    The copyright owner, as well as their successors or assignees, may authorize the use of the work by third parties or assign economic rights, wholly or partially.

    Granting an authorization to third parties in order for them to divulge, publish, use or explore the work does not imply the transfer of copyright rights.

    Authorization shall only be granted in writing, mandatorily including the parties involved, the title and type of the work, the rights concerned, the duration, place and price conditions.

    Please note that the assigns are only effective against third parties when registered.

    Remedies for infringement

    The copyright owner may request payment of compensation by the agent for damages and losses to repair the damage suffered as a result the infringement, as well as payment of expenses caused by that infringement, which may include legal expenses.

    The amount of the compensation is determined in accordance with the civil liability regime provided for by the Angolan Civil Code, taking into account the amount of material and moral damage suffered by the copyright owner, as well as the profit obtained by the offender.

    When it is proven that the infringing copies affect a right, the Court may order, ensuring that the penalty is proportionate to the seriousness of the offense and taking into account the legitimate interests of third parties, the destruction of those copies and their packaging or their elimination of trade channels by any other reasonable means, without compensation of any kind, in order to avoid any damage to the copyright owner.

  • Mask works / topographies

    Nature of right

    Mask works and topographies are not separately protected under Angolan law. They may be protected under patent law or by way of confidentiality.

    Legal framework

    Angolan has enacted no specific rules on protection of mask works or topographies. Although Angola is part of the WTO and has approved the TRIPS Agreement, it has not yet implemented any rules on mask works or topographies protection.

    Semiconductor technology, generally, and topographies, in particular, may be protected under the traditional intellectual property rules applicable to all types of technology, particularly patent law and the rules on confidential information. Therefore, matters such as the duration of the relevant rights, ownership and remedies depend on the type of protection used in connection with each specific mask work or topography.

    Duration of right

    Not applicable for this jurisdiction.

    Ownership / licenses

     Not applicable for this jurisdiction.

    Remedies for infringement

    Not applicable for this jurisdiction.

  • Patents

    Nature of right

    Patent rights cover new inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.

    An invention shall be considered new if it does not form part of the state of the art, which comprises everything, inside or outside the country, made available to the public by means of a written or oral description, by use, or in any other way, before the date of filling of the patent application.

    An invention shall be considered involving an inventive step if it is not obvious to a person skilled in the art.

    An invention shall be considered susceptible of industrial application if it can be made or used in any kind of industry, including agriculture, fishing and handicraft.

    A national patent confers on its owner the exclusive right to exploit the patented invention in Angolan territory.

    Legal framework

    Patents are governed by the following:

    • Chapter II, the Industrial Property Law (Articles 2 to 14)
    • Membership of the World Intellectual Property Organization (WIPO), approved by Resolution No. 9/84 of July 20
    • Paris Convention for the Protection of Industrial Property – approved by Resolution No. 22/05 of August 19
    • Cooperation Treaty patent (PCT) approved by Resolution No. 22/05 of August 19 and
    • Membership of the World Trade Organization (WTO), hence the TRIPS Agreement (Accession November 23, 1996).

    Duration of right

    Patent protection is granted up to a maximum period of 15 years from the date of filling of the patent application.

    Ownership / licenses

    Patents can be transferred in writing, by means of public deed, whether or not for financial reward.

    Patents may also be licensed in writing, wholly or partially, whether or not for financial reward, on an exclusive or non-exclusive basis.

    Transfer of ownership and licenses shall be recorded in the Angolan Institute of Industrial Property to be effective against third parties.

    Remedies for infringement

    Whenever there is violation of or justified fear that another party may cause serious and difficult-to-repair harm to an industrial property right, including patent rights, the court may, at request of the interested party, order the appropriate measures to prevent any imminent violation or to prohibit continuation of the violation.

    Whoever illegally violates the industrial property rights of another person with intent or by negligence shall be obliged to pay a compensation to the injured party for damages resulting from the violation.

    In determining the amount of compensation for losses and damages, the court shall take into account the profit obtained by the infringer and the resulting damages and lost profits suffered by the injured party. The costs borne out of protection of the right in question and the investigation and termination of the harmful conduct shall also be taken in consideration, as well as personal injury.

    Infringement of the exclusive right granted by a patent may be also punishable as crime with imprisonment up to 6 months or a fine.

  • Trademarks

    Nature of right

    A trademark is a sign that distinguishes a company's goods or services, from the goods and services provided by other companies. There are 3 types of trademarks, namely:

    • Nominative: when constituted by letter(s) or word(s)
    • Figurative: consisting of figures or images and
    • Mixed: when it includes a combination of figures and words or letters in its constitution.

    The registered trademark confers to the owner, the right to prevent third parties that do not have their consent from using in the course of trade any sign which is identical or similar to the trademark in relation to goods and/or services which are identical or similar to those for which the trademark is registered.

    Legal framework

    Trademarks are governed by the following:

    • Chapter II, the Industrial Property Law (Articles 29 to 40)
    • Membership of the World Intellectual Property Organization (WIPO), approved by Resolution No. 9/84 of July 20
    • Paris Convention for the Protection of Industrial Property – approved by Resolution No. 22/05 of August 19 and
    • Membership of the World Trade Organization (WTO), hence the TRIPS Agreement (Accession November 23, 1996).

    Angola is not a party to either the Madrid Agreement or the Madrid Protocol. As such, International Registrations (IRs) cannot be extended to Angola. Angola's accession to the Madrid Agreement and/or the Madrid Protocol is currently the subject of consultation, but the position is unlikely to change for a number of years to come.

    Duration of right

    National trademark registrations remain valid for 10 years starting from the date of filing of the application and may be indefinitely renewed for equal periods.

    Ownership / licenses

    Trademarks can be transferred in writing, wholly or partially, whether or not for financial reward. A transfer of the whole of the undertaking shall include the transfer of the trademark except where there is agreement to the contrary or circumstances clearly dictate otherwise.

    Trademarks may also be licensed in writing, wholly or partially, whether or not for financial reward, on an exclusive or non-exclusive basis.

    Transfer of ownership and licenses must be recorded in the Angolan Institute of Industrial Property to be effective against third parties.

    Remedies for infringement

    Whenever there is violation of or justified fear that another party may cause serious and difficult-to-repair harm to an industrial property right, including trademarks, the court may, at request of the interested party, order appropriate measures to prevent any imminent violation or to prohibit continuation of the violation.

    Whoever illegally violates the industrial property rights of another person with intent or by negligence shall be obliged to pay a compensation to the injured party for the damages resulting from the violation.

    In determining the amount of compensation for losses and damages, the court shall take into account the profit obtained by the infringer and the resulting damages and lost profits suffered by the injured party. The costs borne out of protection of the right in question and the investigation and termination of the harmful conduct shall also be taken in consideration, as well as personal injury.

    Trademark infringement is punishable as crime with imprisonment up to 3 months or a fine.

  • Trade secrets

    Nature of right

    Trade secrets are not protected as property in Angola. However, the Angolan Industrial Property Law, in the chapter related to Crimes of Unfair Competition, characterizes as crimes certain conducts involving the unauthorized use of trade secrets. As a result, there is legal protection against the violation of trade secrets.

    Legal framework

    Trade secrets are addressed in article 73 of the Angolan Industrial Property Law.

    Duration of right

    Not applicable for this jurisdiction.

    Ownership / licenses

    Not applicable for this jurisdiction.

    Remedies for infringement

    Remedies available for infringement of trade secrets can include criminal remedies (imprisonment and monetary fine) and civil remedies (injunction to prevent the continuation of infringements and damages).

    Trade secret violation is punishable with a fine, if a more serious sanction does not apply by applying the provisions of the penal code and Law No. 9/89 (Law on Crimes Against the Economy).

  • Other key IP rights

    Nature of right

    Design

    Industrial design means any new arrangement or set of lines or colors that, for industrial or commercial purposes, can be applied to the ornamentation of a product by any manual, mechanical, chemical, simple or combined process.

    The registered design confers to the owner the right to prevent third parties that do not have their consent from using it. The aforementioned use shall cover, in particular, the making, offering, putting on the market, importing, exporting or using of a product in which the design is incorporated or to which it is applied, or stocking such a product for those purposes.

    Industrial designs

    Industrial designs

    Legal framework

    Design

    Designs are governed by Chapter III of the Industrial Property Law (Articles 15 to 28).

    Duration of right

    Design

    Designs registrations remain valid for 5 years starting from the date of filing of the application and may be renewed for 2 consecutive times of 5 years each.

    Ownership / licenses

    Design

    Designs may be licensed in writing, wholly or partially, whether or not for financial reward, on an exclusive or non-exclusive basis.

    Transfer of ownership and licenses must be recorded in the Angolan Institute of Industrial Property to be effective against third parties.

    Remedies for infringement

    Design

    Whenever there is violation of or justified fear that another party may cause serious and difficult-to-repair harm to an industrial property right, including designs, the court may, at request of the interested party, order appropriate measures to prevent any imminent violation or to prohibit continuation of the violation.

    Whoever illegally violates the industrial property rights of another person with intent or by negligence shall be obliged to pay a compensation to the injured party for the damages resulting from the violation.

    In determining the amount of compensation for losses and damages, the court shall take into account the profit obtained by the infringer and the resulting damages and lost profits suffered by the injured party. The costs borne out of protection of the right in question and the investigation and termination of the harmful conduct shall also be taken in consideration, as well as personal injury.

    Infringement of the exclusive right granted by a registered design may be punishable with a fine.

  • Intellectual property in employment context

    Employees

    As a general rule, the copyright over a work made under a labor agreement or in compliance with functional obligations is determined by agreement between the parties. In case no agreement exists, it is presumed that the ownership over the work belongs to the respective intellectual creator. In cases where there is a service provision contract, the property rights over the work are transferred to the contractor or entity represented by it.

    The right to patent shall belong to the inventor or their successors in title. Notwithstanding, if an invention was made during the performance of an employment contract in which inventive activity is provided for, the right to the patent belongs to the employer.

    Consultants / contractors

    In principle, consultants and contractors will retain ownership of the intellectual property developed by them, unless otherwise agreed by the parties or provided for in the law.

  • Key commercial contract considerations

    Registration of commercial agreements

    There are no general registration requirements for commercial contracts under Angolan law; however, certain exceptions may arise. Furthermore, Industrial Property Rights licenses are subject to registration within the Angolan Industrial Property Institute (IAPI) in order to be enforceable against third parties.

    Recognized language of commercial agreements

    There are no general requirements under Angolan law that provide that contracts must be written in Portuguese. However, in certain cases – for instance, contracts with consumers – the Portuguese language is mandatory, and, if the contract is to be used in specific situations – for example, for purposes of evidence in court or used with public authorities – translation to Portuguese is required.

    Country-specific issues for online content

    Electronic contracts are regulated under Presidential Decree No. 202/11 of July 22.

    Enforceability of online/clickwrap/shrinkwrap terms

    Contracts may be concluded electronically, provided that it does not affect its validity or effectiveness due to the use of this medium. Please note that general contractual clauses requiring electronic conclusion of consumer contracts are prohibited.

    The provider shall make available to the recipients, before the conclusion, unambiguous minimum information including (i) the contract conclusion process, (ii) whether or not the contract is stored by the service provider and accessibility by the recipient, (iii) the language or languages in which the contract may be concluded, (iv) the technical means which the provider makes available so that errors of introduction which may be contained in the order form may be identified and corrected, (v) the contractual terms and general clauses of the contract to be concluded, (vi) the codes of conduct subscribed and information on how to consult them electronically  and (vii) the effective technical means which allows the recipient to identify and correct inserted errors.

    Governing law

    The interpretation and enforceability of contracts is a matter of governing law. The choice of law by the parties is accepted as a general principle, except when otherwise provided for by law; please, however, note that, in certain cases, there are rules of mandatory application – for instance, in the scope of contracts concluded with consumers.

  • Key commercial contract terms

    Enforceability of warranty disclaimers

    This will depend on the specific warranty. Notwithstanding, the law may provide some restrictions on the enforceability of warranty disclaimers (eg, for reasons of consumer protection).

    Enforceability of exclusions/limitations of liability indemnification

    As general rule, the enforceability of exclusions or limitation of liability is limited under Angolan law. According to civil law, limitation of liability or exclusion of liability concerns the grounds of liability itself and the damages and losses. The law is not absolutely clear when dealing with the matter; therefore, some hold the opinion that the law does not prevent clauses limiting or excluding liability for acts of mere negligence, while others suggest that all clauses of exclusion or limitation are completely null and void.

    Indemnification

    Indemnification clauses in contracts are, in principle, enforceable, but may be subject to restrictions provided for in the law. It is relatively common to stipulate in commercial agreements that the indemnifying party will indemnify and hold harmless the other party against claims of third parties related to the subject matter of the agreement.

    Electronic signatures

    According to Angolan law, a qualified electronic signature is equivalent to an autographic signature in paper documents. An electronic document shall only be deemed to be signed for purposes of evidence where it meets the requirements set by the law on electronic signature and certification.

  • Key contacts
    Murillo Costa Sanches
    Murillo Costa Sanches
    Of Counsel DLA Piper [email protected] T +351 213 583 659 View bio
    Joni Garcia
    Joni Garcia
    Associate DLA Piper ADCA Angola [email protected] T +244 926 612 525

Trade secrets

Legal framework

Angola

Trade secrets are addressed in article 73 of the Angolan Industrial Property Law.

Argentina

Confidential information is governed and protected by Law 24,766. It is also protected by the Trips Agreement and by the Paris Convention.

In addition, multiple rules and statutes protect confidential information and trade secrets. Labor law protects the confidentiality and ownership of information used in employment relationships.

Several criminal law rules apply to special types of violations of confidentiality. In particular, disclosure of trade secrets and unfair competition by means of the illegal use or appropriation of trade secrets are subject to criminal law penalties.

Australia

Confidentiality of trade secrets is usually stipulated in the contracts between parties and is therefore enforceable under such contract. However, in instances where there is no contract, a plaintiff may be able to rely upon the equitable doctrine of breach of confidence.

Austria

Trade secrets are addressed in a variety of legislation.

Sections 26a – 26j the Unfair Competition Act define trade secrets and regulate their use, misuse and accompanying consequences. It is also possible to hold confidential court proceedings (Section 26h Unfair Competition Act).

Additionally, Sections 122-124 of the Criminal Code penalize the discovery, publication or exploitation of trade secrets in various ways.

Belgium

The following statutes govern actions by an employer against (former) employees:

  • Section 309 of the Criminal Code, which prohibits the disclosure of manufacturing secrets of the employer
Please note that this requires proving a malicious or fraudulent intent, which, as an evidentiary burden of proof, may be a high bar to clear.
  • Section 17 of the Act of July 3, 1978 on Employment Agreements states that employees are obliged, both during and subsequent to the term of the employment contract, to refrain from the unlawful acquisition, use or disclosure (within the meaning of Article XI.332/4 CEL) of a trade secret (within the meaning of Article I.17/1(1) CEL) or secrets related to personal or confidential matters, of which they learn in the performance of their professional activities.

The following legislation governs actions against other 3rd parties:

  • Title 8/1 of Book XI CEL
  • Civil liability law, namely Sections 1382-1383 of the Civil Code or (in case 2 undertakings are involved) Section VI.104 of Book VI "Market Practices and Consumer Protection" CEL, in conjunction with Section 39(2) of the TRIPS
  • Agreement and with Section 8 of the European Convention on Human Rights, if the 3rd party illicitly obtains, misappropriates, discloses and uses a trade secret and thus causes or threatens to cause prejudice to a 3rd party

  • Contract law, if an agreement (such as a non-disclosure agreement) was concluded with the 3rd party.

Brazil

Trade secrets are addressed for Brazil under Federal Law no. 9,279/96 (the Industrial Property Law).

Canada

In Canada, there is no federal trade secrets legislation or equivalent statute. ‎Instead, trade secrets are protected under the common law cause of action for breach of confidence, or otherwise by contract. In Québec, trade secrets are protected by statute by virtue of the Civil Code of Québec. There are also relevant prohibitions in Canada's Criminal Code, providing that it is a criminal offence for a person “by deceit, falsehood or other fraudulent means” to knowingly obtain a trade secret or communicate or make available a trade secret.

Enforcement of rights and protection stems from the obligation of confidentiality or a fiduciary duty treatment of trade secrets as property. The general rule is that a recipient of confidential information, who receives the information in conditions of confidence, may only use it for the purpose for which it was given.

Chile

The protection of trade secrets is regulated by Law 19039 on Industrial Property. The framework for protection of trade secrets is the same as for the protection of trademarks, except that, for trade secrets, there is no need for registry.

China

Trade secrets are mainly protected under the PRC Anti-Unfair Competition Law. The State Administration of Market Supervision also issued Certain Regulations on Prohibiting Infringements upon Trade Secrets.

Colombia

Trade secrets are governed by Decision 486 of 2000 issued by CAN, and by Law 256, 1996.

Czech Republic

Trade secrets are governed by the Civil Code.

Denmark

Trade secrets are governed by the Act on Protection of Trade Secrets (LOV 309 25/04/2018) and the Danish Criminal Code § 299 a on the penalty for violation of the Trade Secrets Act under aggravating circumstances and §§ 263-264 (protection of outside intruders) regarding industrial espionage. The Act on Protection of Trade Secrets is based on EU Parliament and Commission Directive EU 2016/943 of June 8, 2016 on Confidential Know-How and Trade Secrets

Finland

Misappropriation of trade secrets or attempting such is forbidden in Sections 3 and 4 of the Trade Secret Act. The Trade Secret Act entered into force in August 2018; the Act implements the EU directive on trade secrets. The Finnish Penal Code includes provisions on the unauthorized disclosure of a trade secret and trade secret misappropriation.

France

Trade Secrets are governed by the following legal framework:

  • EU Directive 2016/943 on Trade Secrets dated June 8, 2016
  • Part V of the French Commercial Code: Article L. 151-1 et seq.
  • Law No.  2018-670 dated July 30, 2018 implementing the EU Directive 2016/943 and
  • Decree No. 2018-1126 on Trade Secrets dated December 11, 2018.

It is completed by Article 39 of the TRIPS Agreement.

Article L. 621-1 of the French Intellectual Property Code is specifically related to the disclosure of secret manufacturing processes by directors and/or employees.

Germany

The German Trade Secret Act ( Geschäftsgeheimnisgesetz) governs the protection of trade secrets. According to the Trade Secrets Act, a “trade secret” is information:

a. That is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question

b. That has commercial value because it is secret

c. That has been subject to adequate measures under the circumstances, by the person lawfully in control of the information, to keep it secret and

d. In regard to which there is a justifiable interest in keeping it

It is mandatory to have adequate protection measures in place. The measures taken by the owner are relevant to assess whether information is protected as a trade secret and the scope of such protection. Trade secrets can include, for example, business plans, price calculations, financial information, investment plans, business strategies, customer lists and similar information.

Trade secrets are protected against their unfair acquisition, use and disclosure. Such is considered unfair especially where access has been obtained unlawfully: documents, data or materials that have been copied without authorization or where acts against honest commercial practice have been committed. Not unlawful are especially independent developments, also through reverse engineering.

Hong Kong, SAR

There is no statutory regime for protection of trade secrets in Hong Kong. The law of confidence is the legal basis for trade secrets protection. The parties must prove 3 elements to establish a claim for breach of confidence, namely:

  1. the information must have the necessary quality of the confidence, ie it must not be something which is public property and public knowledge;
  2. the information must have been imparted in circumstances which impose an obligation of confidence – ie, any reasonable person standing in the shoes of the recipient of the information would have realized that the information was confidential; and
  3. there must be an unauthorized use of that information to the detriment of the party communicating it.

The mere fact that the parties described or labelled the information as “confidential” will not be conclusive or determinative as to whether the information would be protected under the law of confidence. In an employment contract, even in the absence of express terms, there will generally be an implied term that an employee should not disclose or use to the detriment of the employer any information obtained in confidence in the course of or by reason of their employment.

Hungary

Act No. 54 of 2018 on the Protection of Trade Secrets.

Act No. 100 of 2012 on the Criminal Code.

India

There is no specific legislation that protects trade secrets in India, and Indian courts have upheld trade secrets protection under various statutes, including contract law, copyright law, the principles of equity and the common-law actions of breach of confidence and misappropriation under tort law. It is common for parties to contractually protect their respective trade secrets in compliance with the general provisions of the Contract Act.

India is party to the Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) of 1994, which addresses the concept of Trade Secrets, in Article 39. However, India does not currently have any statute or legislation that protects trade secrets. Thus, trade secrets must be contractually protected.

Indonesia

Law Number 30 of 2000 on Trade Secret (Trade Secret Law) is the governing statute for trade secrets in Indonesia.

Ireland

The Trade Secrets Directive (EU) 2016/943 has been implemented in Ireland by the European Union (Protection of Trade Secrets) Regulations 2018. These regulations protect undisclosed know-how and business information (trade secrets) against unlawful acquisition, use and disclosure.

The disclosure of confidential information is governed by common law and/or, where applicable, may be governed by contract.

Israel

The Commercial Torts Law 1999.

Italy

Section 2598 of the Italian Civil Code and Sections 98 and 99 of the Industrial Property Code govern the protection of trade secrets.

The current legal framework governing trade secret protection has been slightly amended by Legislative Decree 11 May 2018, No. 63 in order to comply with the provisions set forth in Directive No. 943/2016/UE (the so-called Trade Secret Directive).

Japan

The UCPA is the main governing law regarding trade secrets. The UCPA does not require any registration or filing of trade secrets to protect them.

Luxembourg

While remedies for trade secret infringements used to be governed by tort law (article 1382 of the Civil Code), unfair competition law (Competition Act of 23 October 2011) and general criminal law (article 309 of the Criminal Code), as well as contract law (article 1134 of the Civil code) under the Trade Secrets Act, the trade secret holder may make use of measures and remedies, such as:

  • Prohibitory injunctions
  • Damages
  • Corrective measures (eg, the destruction of the infringing goods)

Mexico

3rd Title of the Federal Law for the Protection of Industrial Property (Ley Federal de Protección a la Propiedad Industrial).

Netherlands

Civil law

In addition, the Dutch Civil Code provides a basis for action, for instance, against someone who breached a non-disclosure obligation or who has provoked such a breach. In addition, when a third party takes advantage of the breach of someone else's non-disclosure obligation, it may be unlawful.

Contract law, if an agreement (such as a non-disclosure agreement) was concluded with the third party.

Article 7:678 sub I of the Dutch Civil Code provides that an employee who discloses information that should have been kept secret about their employer's company may be dismissed with immediate effect.

Criminal Law

The Dutch Criminal Code stipulates the criminal protection of trade secrets.

European developments

On June 8, 2016, following a proposal from the European Commission, the European Parliament and the Council adopted a directive that aims to standardize the national laws in EU countries against the unlawful acquisition, disclosure and use of trade secrets.

The directive harmonizes the definition of trade secrets in accordance with existing internationally binding standards. It also defines the relevant forms of misappropriation and clarifies that reverse engineering and parallel innovation must be guaranteed, given that trade secrets are not a form of exclusive intellectual property right.

Without establishing criminal sanctions, the proposal harmonizes the civil means through which victims of trade secret misappropriation can seek protection, such as:

  • Stopping the unlawful use and further disclosure of misappropriated trade secrets
  • The removal from the market of goods that have been manufactured on the basis of a trade secret that has been illegally acquired
  • The right to compensation for the damages caused by the unlawful use or disclosure of the misappropriated trade secret

EU countries must bring into force the laws and administrative provisions necessary to comply with the Directive by June 9, 2018. As stated above. The EU Trade secrets directive was enacted in the Netherlands in the Trade Secrets Act in October 2018.

New Zealand

Trade secrets are governed by common law protection of confidential information, but often plaintiffs will be able to rely on contractual arrangements and also employment law.

Nigeria

No text yet.

Norway

The protection of trade secrets are governed by the Norwegian Trade Secret Act (forretningshemmelighetsloven).

The Trade Secret Act incorporates Directive 2016/943 of the European Parliament and of the Council June 8, 2016 on the protection of undisclosed know-how and business information (ie, trade secrets) against their unlawful acquisition, use and disclosure. The Act repeals the previously scattered legal framework and consolidates the law into one Act. The Trade Secrets Act introduced new enforcement alternatives. Trade secrets shall have the same meaning under the new law.

Peru

N/A

Philippines

The IPC, as interpreted by the Philippine Supreme Court, protects trade secrets as intellectual property right under undisclosed information.

A trade secret is defined as a plan or process, tool, mechanism or compound known only to its owner and those of their employees to whom it is necessary to confide it. The definition also extends to a secret formula or process not patented, but known only to certain individuals using it in compounding some article of trade that has a commercial value.

A trade secret may consist of any formula, pattern, device or compilation of information that (1) is used in one's business and (2) gives the employer an opportunity to obtain an advantage over competitors who do not possess the information. Generally, a trade secret is a process or device intended for continuous use in the operation of the business – for example, a machine or formula – but can be a price list or catalogue or specialized customer list. It is indubitable that trade secrets constitute proprietary rights. The inventor, discoverer or possessor of a trade secret or similar innovation has rights therein which may be treated as property, and ordinarily an injunction will be granted to prevent the disclosure of the trade secret by one who obtained the information "in confidence" or through a "confidential relationship.”

Poland

The Act on Combating Unfair Competition. 

Portugal

Trade secrets are governed by:

  • Title III, Chapter II of the Industrial Property Code (Articles 313 to 315)
  • Articles 195 to 197 of the Criminal Code

Romania

Trade secrets are governed by Urgency Ordinance no. 25 of April 18, 2019 on the protection of know-how and undisclosed business secrets that are commercial secrets against unlawful acquisition, use and disclosure, as well as for the amending and completion of other normative acts and Law no. 11 of January 29, 1991 on fighting unfair competition.

Russia

Part IV of the Russian Civil Code governs trade secrets.

Saudi Arabia

Trade secrets are governed by the Regulations for the Protection of Confidential Commercial Information issued by Ministry of Commerce and Industry Decision No. 3218 (as amended), passed in 2005 (Trade Secrets Regulations).

Singapore

There is no statutory regime for protection of trade secrets in Singapore. Trade secrets and confidential information are generally protected by contractual obligation between the parties and by the law of confidence under common law, which protects ideas and information that are not in the public domain, including trade secrets.

Trade secrets may also be protected by other areas of Intellectual Property and Employment Law depending on the specific facts of the case. The Computer Misuse Act 1993 may also apply where cybersecurity has been breached by a person trying to obtain another’s trade secrets. 

Slovak Republic

Business secret is regulated by the Commercial Code.

South Korea

Trade secrets are protected by the UCPA, the Act on Protection and Prevention of Disclosure of Industrial Technology (Industrial Technology Act), and the Act on Special Measures for Strengthening the Competitiveness of and Protecting National High-Tech Strategic Industries (National High-tech Strategic Industries Act) in Korea.

Spain

Trade secrets are mainly protected in Spain under the Trade Secrets Act 1/2019, the Unfair Competition Act, the Criminal Code and TRIPS Agreement (Spain being signatory since 1995) contain also provisions specifically aimed at trade secrets.

There are also other laws which deal with trade secret protection, such as the employment laws establishing secrecy obligations of directors/employees or the Patents Act 24/2015.

Sweden

In 2018, a new Act on Trade Secrets (2018:558) (Lag om företagshemligheter) entered into force, replacing the older Act from 1990. The Act governs trade secret protection and the new Act is based upon an initiative from the European Union, which broadly strengthens the protection of trade secrets. The strengthened protection means, among other things, that more attacks on business secrets are considered unlawful and that the obligation to pay damages has been extended. However, for information to be classified as a trade secret, the new Act sets up a requirement that the holder of the information must take reasonable steps in order to keep the information secret (eg, by way of confidentiality agreements).

Under the new Act the definition of a "trade secret" has been slightly revised to exclude the experience and skills gained by employees in the normal course of their employment. As such, the employee shall be free to use the obtained knowledge in the course of a new employment.

However, there have been no changes regarding the provisions listed below.

Switzerland

Protection of trade secrets is addressed by the Federal Unfair Competition Act, Code of Obligations and Criminal Code.

Taiwan, China

The Trade Secret Act was promulgated on January 17, 1996.

Ukraine

The legal landscape for trade secret protection in Ukraine includes the Civil Code of Ukraine dated January 16, 2003 and Commercial Code of Ukraine dated January 16, 2003. In addition, the rules of the Agreement on Trade-Related Aspects of Intellectual Property Rights are applied in Ukraine.

United Arab Emirates

Trade secrets are addressed by Federal Law No. 3 of 1987 (Penal Code), Federal Law No. 5 of 1985 as amended (Civil Code), and

Federal Law No. 8 of 1980 as amended by Federal Law No. 8 of 2007 (Labor Law).

United Kingdom

Trade secrets are governed by the Trade Secrets (Enforcement, etc.) Regulations 2018 and case law.

United States

The DTSA creates a trade secret action under federal law that is intended to supplement, rather than pre-empt, state laws.

The UTSA has been adopted by 49 states, the District of Columbia, Puerto Rico and the US Virgin Islands, though some states have slightly broader or narrower definitions of trade secrets than others. The remaining state, New York, has adopted the approach taken by Section 757 of the Restatement of Torts.