Protection of the trade secret in Kuwaiti law
Trade secret
A trade secret is any information, design, method, equation, method or combination unknown to the general public that provides its owner with a competitive advantage in the field of trade and business. A trade secret is any information, material means, idea or recipe characterized by the following: -
1- Confidentiality.
2- Of commercial value.
3- It is in a Hafiz insurance system.
Moreover, the essence of the trade secret is the confidentiality of information, its commercialization and its placing in a protective system, the confidentiality of the information, the idea or the method means distinguishing it with a specificity that distinguishes it from the matters that are discussed among the public so that it is far from the public's knowledge but its essence, and this leads us to the fact that the knowledge of the essential few of the secret A trade secret A trade secret does not deviate from its description as a trade secret as long as the ways to access this secret vary. This information, idea, or method, as confidential, should be of commercial value in the sense that it produces a material and economic value of consideration in the environment in which the owner of the secret deals with this. We find there are security and protection measures to preserve the confidentiality of the information and this is evidence of the intent of the owner of the secret to protect him. Who says the public, and does not require the adoption or availability of strict measures, but reasonable measures in the form of: -
1- Placing the documents in a security check.
2- The circle of persons who have the right to access the trade secret is narrowing.
3- A warning about the confidentiality of the document or information.
4- A written requirement for employees.
5- Banning viewing and filming.
6- The right holder stipulates that his employees not work for other competitors.
Trade secrets and patents:
Trade secrets are divided into two types:
1- Patent: It is a type of trade secret that fulfills the required criteria to impose legal protection.
2- Trade secret: that which does not meet the criteria and protective capacity under the patent law.
The trade secret is characterized by the following:
1- Trade secret protection is not restricted by a period of time.
2- Its protection does not require formalities.
3- Its registration does not require a financial cost.
However, there are deficiencies or negative aspects in protecting the information with the trade secret, because if the trade secret is in the form of a product that can be examined and analyzed by others (reverse engineering), the protection of the inventor under the trade secret does not prevent the character of exclusivity and prevent others from contenting with it for commercial purposes.
The legal basis for protecting a trade secret:
In a previous historical stage, the legal conditioning of the trade secret did not depart from the general obligation not to harm others or a contractual obligation, but later it gained importance that gave it an opportunity for many countries to allocate space for it in their commercial legislation, especially since Arab and African countries joined the World Trade Organization Which initiated the unification of legal systems by agreements that included rules, including rules that regulate trade secrets.
Article 39 of the International Convention on Commercial Concepts relating to Intellectual Property (trips).
Kuwaiti Trade Law:
The text of the Kuwaiti Trade Law in its Article 58 (It is not permissible for a merchant to lure workers or employees of a merchant to assist him in extracting clients of this trader or to leave the service of this trader or to enter into his service and acquaint him with competing secrets, and these actions are considered illegal competition that deserves compensation).
Article 60/4 (It is considered one of the acts of unfair competition ... 4 any activity that causes disturbance in the market with the intent to harm a merchant or other traders).
And in Law No. 63 of 2015 in the matter of combating information technology crimes and Law No. 20 of 2014 electronic transactions that defined illegal entry (intentional unlawful access to computer systems or an information system through breaching protection systems ...)
Jordanian Law:
The Jordanian legislator has regulated the trade secret in Law No. 15/2000, the law on unfair competition and trade secrets, which stipulates in Article 4:
1- For the purposes of this law, any information shall be considered a trade secret if it is characterized by the following:
1 / It is confidential because it is not usually known in its final form or in its precise components, or it is not easy to obtain it usually among dealers for this type of information.
2 / With commercial value.
3 / That the right holder subjected it to reasonable measures to preserve its confidentiality.
2- The provisions of this law do not apply to trade secrets that conflict with public order or morals.
Article 6 states:
1 / Any person obtaining a trade secret, using it, or disclosing it in a way that violates the honest commercial practices without the consent of the right holder is an abuse of the trade secret.
We notice that there is an overlap between the concepts of the trade secret and the invention, as the essence of the two topics relates to the summary of intellectual effort and its material and objective fruits and the human desire to monopolize them and keep them from the reach of others and their exploitation of them.
The Saudi legislature singled out the regulation for the protection of confidential information issued by Ministerial Decree 3318 of 3/25/ for the protection of confidential commercial information. Article 1 of this regulation defines confidential commercial information by saying: Any information is considered a trade secret in any of the following cases:
1 / As it was usually unknown in its final form or in any of its precise components, or it was difficult to obtain it among dealers usually in this type of dealings.
2 / If it has commercial value because it is secret.
3 / If the right holder reduces it to reasonable measures to preserve its confidentiality in the current circumstances.
As for the third article of the regulation, it stipulated:
1 / Any person obtaining a trade secret, using it, or disclosing it in the manner of the Alliance of Fair Business Practices and without the consent of the right holder is an abuse of the trade secret and in all cases it is not permissible to disclose it in a way that contradicts its truth ...
Articles 1/3 coincide with what the Kuwaiti and Jordanian legislators said in defining a trade secret and what is considered a violation of this secrecy. We also note the congruence in other articles. It is not surprising that the two countries are looking at Article 39 of the International Convention for the Standardization of Commercial Concepts related to Intellectual Property.
Trips (in the course of ensuring effective protection against un fair competition as provide in article 10bis of the Paris convention (1967) Members shall protect undisclosed information in accordance with paragraph (3).
This article continues in its provisions, which have become a legislative source for many countries, regarding the issue of trade secret and patenting of invention, in particular the Saudi regime, which inspired many of its provisions from it.
It is worth noting that Kuwait joined the TRIPS Agreement (the Agreement on Trade-Related Intellectual Property Rights), which was followed by the issuance of Law 81 of 1995, which brought the provisions of the agreement into national law (embody).
The Cooperation Council for the Gulf States issued Law 71 of 2013 for Patents, which was consistent with TRIPS in many provisions.
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