We receive emails, regularly, requesting advice on the protection of IP rights in Korea and China. Most of the issues I addressed in this blog come from these questions. I realized, after writing over 1000 posts on this blog, that I never drafted a post on trade secrets. So here we go.
Definition of a Trade Secret in Korea
As you probably know, a trade secret is, simply any design, process, formula or the like that is not known or readily ascertainable by a third party that may provide an economic benefit to the individual possessing the trade secret. Notwithstanding, non-compete and non-disclosure agreements, Korea and most countries, typically, only protect trade secrets against an alleged violator when the alleged holder of the trade secret makes a “reasonable effort” to protect the trade secret and is able to establish that it has made this reasonable effort to protect the trade secret.
Protection of Trade Secrets in Korea: The Basics
1. Identify your Trade Secrets. Draft a document in English and Korean identifying the trade secrets of your company. This does not mean you need to write down the specific details of the trade secret. Example: Formula for the Manufacture of a Black Carbonated Beverage better known as Classic Coke.
2. Korean Non-Disclosure & Non-Compete Agreements. Have all that you do business with sign detailed and Korean-specific Non-Compete and Non-Disclosure Agreements. Include a liquidated damages clause in these agreements. These agreements should be executed by all suppliers, employees, directors, and others in Korea whom you are doing business with.
3. Put in Place a Trade Secret Protection Scheme for Korea. Before creating a trade secret protection scheme please consider how your trade secret is likely to be misappropriated by others – think, at a minimum, employees, vendors, suppliers, and customers. After the analysis, write down the scheme and integrate the scheme into your business. We strongly advise discussing the scheme with a business or legal consultant. The IP Protection scheme can be based on the following: Protecting your Intellectual Property Rights in Korea and Ten Steps to Protect your Brands, Trademarks, and other IP in Korea.
4. Due Diligence in Korea. Due Diligence in hiring, firing, and engagement with outside business partners and vendors.
5. Enforce Your Rights in Korean Courts. If you are not willing to enforce your rights in a Korean court – you will, likely, become known as a company with softball managers and will, thus, likely be the victim again in the future. Don’t forget even the large Korean conglomerates are engaged in litigation to protect their IP – some of this litigation is, simply, to defer future violators.
- Protecting Trade Secrets in Korea: Top 5 Things to Know Before Subjecting your Business Secrets to the Korean Market
- Korean Patent Law’s Trade Secret Protection: Amendment to Trade Secret Law in Korea
- Protecting your Intellectual Property Rights in Korea: Avoid “Trying Different Things & Smoking Funny Things”
- Enforceability of NDAs in Korea
- Non-Compete Restrictive Covenant in Employment Contracts in Korea
- Enforcement of Covenants Not to Compete in Employment Agreements in Korea: Restrictive Covenants in Korea
- Non-Compete Clauses in Korean Employment Agreements and Korean Business Sales Agreements
- 14 Things to Consider Before Starting a Manufacturing Business in South Korea
- Korean Data Privacy: Korean National Assembly passes the Second Major Amendment to the Personal Information Protection Act of Korea
- Trademarks Registration in Korea: Don’t Just Trust Us