The client list is intended to be protected by trade secrets

　　The State Administration for Market Regulation Publicly Solicits Opinions on Trade Secret Protection Regulations

　　□ Our reporter Wan Jing

　　Recently, the State Administration for Market Regulation publicly solicited opinions on the "Provisions on the Protection of Trade Secrets (Draft for Comment)" (hereinafter referred to as the "Draft for Comment").

The "Draft for Comment" intends to refine the methods of infringement of trade secrets, and clarify important contents concerning the protection of trade secrets, including the definition of trade secrets, the infringement of trade secrets, the investigation and handling of suspected infringements of trade secrets, and legal liability.

One of the most notable is the clarification of the circumstances under which the client list is intended to be protected as a trade secret.

　　It is reported that the main purpose of the “Draft for Comment” published by the State Administration of Market Supervision this time is to link up with the anti-unfair competition law officially announced and implemented last year, to further refine the legal provisions and improve its operability.

The deadline for comments and suggestions is October 18, 2020.

　　Refine the requirements of trade secrets

　　Effectively adapt to existing laws

　　The "Draft for Solicitation of Comments" intends to define and refine the three most important components of trade secrets, namely ignorance of the public, commercial value, and the adoption of corresponding confidentiality measures.

Among them, not known to the public means that the information is not generally known to the relevant personnel in the field or cannot be easily obtained from public channels.

　　However, if there is one of the following circumstances, it can be determined that the relevant information does not constitute ignorance of the public: the information has been publicly disclosed in public publications or other media at home and abroad or has been disclosed through public reports, exhibitions, etc.; the information It has been publicly used at home and abroad; the information is common sense or industry practices generally mastered by relevant personnel in the field; the information is easily obtained without paying a certain price or can be obtained from other public channels; only product size, structure, and components are involved After entering the public domain, the relevant public can obtain the content information such as simple combination of, through simple methods such as observation, surveying, and disassembly.

If the technical novelty report, search report, public channel inquiring about commercial information, etc. submitted by the applicant do not constitute substantially the same information as the information involved, it can be presumed that the information is “not known to the public”, unless there is evidence to the contrary.

　　At the same time, the "Draft for Comments" also intends to clarify the circumstances that do not constitute an infringement of trade secrets such as reverse engineering.

Reverse engineering refers to the disassembly, surveying, mapping, and analysis of products obtained from public channels through technical means to obtain relevant technical information of the product, but personnel who have contacted and understood the right holder or the holder’s technical secrets through recall and disassembly The act of obtaining the technical secrets of the right holder by the terminal product does not constitute reverse engineering.

Obtaining trade secrets through reverse engineering or similar means does not constitute an infringement of trade secrets; except for reverse engineering in which trade secrets or products are obtained through improper means or violated confidentiality obligations.

　　According to the relevant person in charge of the Price Supervision, Inspection and Anti-Unfair Competition Bureau of the State Administration for Market Regulation, the revision of the "Provisions on the Prohibition of Infringement of Trade Secrets" is consistent with the content of the anti-unfair competition law revised in 2019 regarding the protection of trade secrets. Intrinsic requirements.

In 2017 and 2019, the Anti-Unfair Competition Law was revised twice, and the trade secret protection clauses were revised and improved. The definition of trade secrets was further improved, the circumstances of infringement of trade secrets were clarified, and the scope of the infringement of trade secrets was expanded, etc. Wait.

In order to implement the revised Anti-Unfair Competition Law, it is necessary to revise and improve the relevant provisions on the protection of trade secrets based on the "Provisions on Prohibition of Infringements of Trade Secrets", refine the relevant legal provisions, and enhance the application of the law. Sex.

　　Vigorously protect the customer list

　　Solve the problem of corporate rights protection

　　At present, manufacturing companies and foreign trade companies generally have sales personnel who hold customer lists without authorization, gain shares without authorization, gain profits from peers, establish without authorization in the same industry to grab customers, fly orders without authorization and sell at low prices, and change jobs without authorization. Enterprises are facing difficulties in producing evidence and obtaining evidence. Difficulties, high costs, long cycles, difficulty in safeguarding rights, difficulty in litigation, difficulty in enforcement, etc. If it cannot be controlled through mandatory regulations, then sales and management personnel will be confident, and it will be difficult to combat violations of trade secrets.

　　Therefore, the "Draft for Solicitation of Comments" proposes that the right holders, after paying commercial costs, form a relatively fixed list of customers with unique trading habits and other content within a certain period of time, and they can obtain trade secret protection.

　　The customer list generally refers to the customer's name, address, contact information, and transaction habits, intentions, content and other special customer information that is different from relevant publicly known information, including a customer roster that gathers many customers, and specific customer information that maintains long-term stable transaction relationships. client.

If a client conducts market transactions with the employee’s unit based on the individual’s trust in the employee, and after the employee resigns, it can prove that the client voluntarily chooses to conduct market transactions with him or his new unit, it shall be determined that no improper means have been used.

　　He Maobin from the Tianjin Municipal Market Supervision Commission pointed out that in trade secret infringement cases, the right holder and the infringer often have certain points of connection.

Usually, the employee whose right holder has business secrets resigns to the infringer. The employee’s original work content and scope of exposure can be used as a pre-reference for defining the secret point, so that it can be targeted and get twice the result with half the effort.

In the later stage of the case, it must be combined with the evidence obtained from the on-site inspection of the infringer. Only the information of the relevant carrier evidence obtained in the on-site surprise inspection can be used as the secret point of the final stage of closing the case.

　　Sun Jiaen, a senior industry insider who serves as a trade secret protection consultant for many listed companies and high-tech enterprises, believes that the current customer list of companies has become the "lifeblood" of manufacturing companies and foreign trade companies. Many customer lists have participated in trade fairs, exhibitions, etc. It is also obtained through the collection of human resources, financial resources and time through the Internet. Some become contract and transaction customers, and some become potential customers because of no transactions. From the perspective of commercial value, the list of customers protected by trade secrets is not It should have formed a relatively fixed and unique trading habit within a certain period of time.

Therefore, he suggested that the definition of "customer list" should be revised to "the right holder's customer list should be obtained through commercial costs."

　　Increase material submission requirements

　　Standardize corresponding law enforcement procedures

　　Regarding the investigation and handling of suspected violations of trade secrets, the "Draft for Solicitation of Comments" intends to add requirements for the submission of materials by the right holder, entrusted appraisal, case suspension, etc., clarify the seizure and seizure in evidence preservation, and further regulate the corresponding The law enforcement procedures are convenient for front-line law enforcement officers to carry out case handling practices.

　　The "Draft for Comments" proposes to stipulate that when the right holder believes that his trade secret has been infringed, he shall provide evidence that the commercial information he owns meets the statutory requirements for trade secrets when reporting the infringement to the market supervision and management department, as well as the infringement of his trade secrets. .

　　Materials that determine that a trade secret meets the statutory requirements include but are not limited to the following circumstances: the development process and completion time of the trade secret; the carrier and manifestation of the trade secret, the specific content, etc., are not known to the public; the commercial value of the trade secret; The confidentiality measures adopted for the trade secret.

　　If the right holder submits one of the following materials, it shall be deemed to have provided preliminary evidence to reasonably show that its trade secrets have been infringed: there is evidence that the suspected infringer has channels or opportunities to obtain trade secrets, and the information used by the suspected infringer is related to the right holder’s business The secrets are essentially the same; there is evidence that the suspected infringer has channels or opportunities to obtain trade secrets, and the confidential facilities have been improperly destroyed by the suspected infringer; there is evidence that the trade secrets have been disclosed, used, or otherwise disclosed by the suspected infringer. Risk of use; the right holder submits the statement, confession, appraisal opinion, evaluation report and other evidence formed in the civil lawsuit, criminal lawsuit or other legal procedures related to the case to reasonably indicate that his trade secrets have been violated; there are others Evidence shows that trade secrets have been violated by the suspected infringer.

　　In response to this, Wei Shilin, a lawyer at Beijing Dacheng Law Firm, believes that these regulations are a response to the new provisions of the Anti-Unfair Competition Law.

In addition to the evidence provided by the Anti-Unfair Competition Law, other materials that can serve as a preliminary proof that a trade secret has been violated by the suspected infringer can also be submitted as materials.

Compared with litigation, reporting infringement to the market supervision department is a more flexible and convenient remedy. Intervention in administrative intervention for investigation and punishment can promptly assist right holders to safeguard their rights.

Therefore, the protection of trade secrets has been strengthened.

　　Clarify the burden of proof on both sides

　　Invert the burden of proof

　　The "Draft for Comments" intends to clarify the burden of proof for identifying trade secret infringements that are of great concern in the industry: the right holder can prove that the information used by the suspected infringer is substantially the same as the trade secret claimed by himself, and at the same time can prove the suspected infringer Where there are conditions for obtaining their trade secrets, and the suspected infringer cannot provide or refuses to provide evidence that the information used is legally obtained or used, the market supervision and management department may determine that the suspected infringer has infringed based on relevant evidence.

　　It is reported that at present, the success rate of right holders in trade secret infringement cases is generally not high. One of the important reasons is that it is difficult for right holders to provide evidence in trade secret cases.

Before the Anti-Unfair Competition Law was amended, in trade secret infringement cases, the burden of proof was basically done by the trade secret right holder.

　　In response to this phenomenon, the revised Anti-Unfair Competition Law stipulates that in the civil trial proceedings for infringement of trade secrets, the trade secret right holder shall provide preliminary evidence to prove that he has taken confidential measures against the claimed trade secret and reasonably demonstrates the trade secret. In case of infringement, the suspected infringer shall prove that the trade secret claimed by the right holder does not belong to the trade secret provided for in this law.

This practice of inverting the burden of proof has reduced the burden of proof of trade secret owners to a certain extent.

　　Wei Shilin believes that this provision of the "Draft for Comments" clearly and detailed the allocation principle of burden of proof, and it is in line with Article 32 of the Anti-Unfair Competition Law.

According to this article, the right holder needs to prove that the information used by the suspected infringer is substantially the same as the trade secret he claims and that the infringer has the conditions to obtain the trade secret. That is, after the preliminary evidence is required, the burden of proof is on the suspected infringer. If the infringer cannot provide or refuse to provide evidence of its own lawful acquisition or use, the market supervision and management department may determine the infringement based on the existing evidence.