1. What is Trade Secret under Korean
law?
“Trade secret” under Article
2.2 of the UCPA of Korea means technical or business information that: (i) has
not been publicly disclosed, (ii) has an independent economic value, and (iii)
has been maintained as secret with substantial effort. The clause of article
2.2 of the UCPA is : "trade secret" means information, including a
production method, sale method, useful technical or business information for
business activity, that is not known publicly, is the subject of considerable
effort to maintain its secrecy and has independent economic value.
2. What is misappropriation or
infringement of trade secret under Korean law?
Article 2.3 of the UCPA
further stipulates that any of the following acts shall constitute an act of
trade secret misappropriation:
(i)
acquisition of a trade secret through theft, deception, coercion or other
improper means (hereinafter referred to as “act of improper acquisition”), use
or disclosure, to a third party, of the acquired trade secret (including
disclosure thereof to a third party while maintaining its secrecy);
(ii)
acquisition of a trade secret, with the knowledge that an act of improper
acquisition was involved with respect to the trade secret or failing to know
thereof due to gross negligence, use or disclosure thereof to a third party;
(iii)
use or disclosure, to a third party, of a trade secret, with the knowledge gained
subsequent to its acquisition that an act of improper acquisition was involved
with respect to the trade secret or failing to know thereof due to gross
negligence;
(iv)
use or disclosure, to a third party, of a trade secret by a person who has a
fiduciary duty not to use or divulge the trade secret under a contractual
relationship and the like;
(v)
acquisition, use or disclosure, to a third party, of a trade secret with the
knowledge that the trade secret was disclosed in violation of the fiduciary duty
referred to in item (iv) above or failing to know thereof due to gross
negligence; and
(vi)
use or disclosure, to a third party, of an acquired trade secret with the
knowledge gained subsequent to its acquisition that the trade secret was
disclosed in violation of the fiduciary duty referred to in item (iv) above or
failing to know thereof due to gross negligence.
We can assume that the
meaning or scope of misappropriation under Korean law is almost the same as
those of misappropriation under American UTSA. Namely, the key points of misappropriation
under Korean law include (1) acquisition of a trade secret of another by a
person who knows or has reason to know that the trade secret was acquired by
improper means; or (2) disclosure or use of a trade secret of another Without
express or implied consent by a person who used improper means to acquire
Knowledge of the trade secret; or (3) at the time of disclosure or use, knew or
had reason to know that his knowledge of the trade secret was (i) derived from a
person who had utilized improper means to acquire it; (ii) acquired under circumstances
giving rise to a duty to maintain its secrecy or limit its use; or (iii)
derived from a person who owed a duty to the person seeking relief to maintain
its secrecy or limit its use; or (4) before a material change of his position, knew
or had reason to know that it was a trade secret and that knowledge of it had
been acquired by accident or mistake.
3. Remedies for Trade Secret
Misappropriatio
(1) Injunctive Relief -
(2) Damages
A.
Actual loss (including lost profits where applicable),
B.
Unjust enrichment, and/or
C.
Reasonable royalties.
(3) Criminal Sanctions
