Protecting Trade Secrets In Russia

by Orrick - Trade Secrets Group
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The primary laws governing Russian trade secrets are the Federal Law on Information, Information Technologies and Information Protection and the Trade Secret Law. The Civil Code, the Labor Code, the Criminal Code, and the Code of Administrative Offenses provide additional statutory protection for trade secrets.

The Information Law defines trade secrets as “information to which access is limited.” Under the Trade Secret Law a trade secret is “any information (production, technical, economic, organizational, information, etc.) which has an actual or potential commercial value because it is unknown to third parties and because third parties do not have free access to it by legitimate means, and with respect to which the holder of such information has implemented a trade secrecy system.”  Not all information may constitute a trade secret: the Trade Secret Law expressly lists categories of information that may not be a trade secret (e.g., information on the environment, population, or violations of law).

To protect information from unauthorized disclosure, the owner needs to institute a trade secrecy system by following certain statutory procedures that are more stringent than the “reasonable efforts to preserve secrecy” that U.S. practitioners may be used to under U.S. law.  In Russia, to establish such a system the owner has to do the following:

  1. determine the scope of the trade secrets and formalize it in a “List of Trade Secrets”;
  2. issue a policy governing access to the trade secrets and control over such access (normally, in Russian companies, this document is called “Regulations on Confidentiality”);
  3. keep and regularly update a list of the persons who have access to the confidential information; and
  4. mark all documents and other media containing trade secrets with the inscription “Trade Secret,” and an indication of its owner (i.e., the name and location of the company).

If the owner fails to institute these procedures, the information may not be protected as a trade secret.

Certain special rules apply when employees have access to trade secrets. If a trade secrecy system is in place, the employer should notify the employees regarding what information constitutes a trade secret, and inform them that they may not disclose such information. The employees must review the policy governing access to trade secrets (item number 2 above) and sign to confirm that they have done so. An employee who discloses a trade secret may be dismissed, and under the Civil Code, employees can be liable to compensate their employers for any losses caused to the employers by the employee’s culpable disclosure of trade secrets. Employees may also bear criminal or administrative liability under the Criminal Code or Code of Administrative Offenses.

In July 2013, Russia’s new Intellectual Property Court opened, with 16 judges hearing trade secret, patent, trademark and other IP disputes.  The court handles cases involving disputes over the establishment and validity of IP rights as a court of first instance, and IP infringement cases as an appellate or cassation court.  Civil cases on copyright protection, as well as criminal and administrative cases, are outside its jurisdiction.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Orrick - Trade Secrets Group | Attorney Advertising

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