It is definitely obnoxious and vexatious situation when the displaced employees or your business partners steal your clients and make of use of your disclosure. Because of such ambiguity law statement, such case is also difficult for our lawyers to prevent or to deal with. Is it commercial secret infringement when displaced employees or business partners doing business with the clients’information that belongs to you?
Our general view is that in most cases of supreme court and local courts, if the displaced employees contact the clients directly and derives economic value from its disclosure through business, then it is considered as a violation of the trade secret law. In this case, companies have rights to sue them or the new companies they are in, further can claim for the damage.
Our technical points according to the practice and professional research are as below:
1.If such information: contacts, names, trade preference, regular clients, and etc, are included in the disclosure, then this can be considered as a violation of the Trade Secret Law.
2. If the majority of clients are doing business with the new company, then this new company bears more burdens to evince for the infringement of Trade Secret Law. The new company should provide evidence that the clients had no connections with the previous company, and have to prove that they have investigated the customer prior to starting business since they are obliged to do so. Thus, the new company has to prove the following act does not fall into infringement of the law.
3. If there are few clients (even only one client), it will be much harder to find the actual documents that can prove the infringement of commercial secret, so the burden of proofs for the defender is relatively less.
4. The amount of compensation can be determined by the patent infringement compensation. If the new company partially infringes the Trade Secret Law, the compensation should be calculated according to the profit of the company, discretionary. The company does not have to bear the cost of customer developing.
The summary of the trial case by supreme court about commercial secrets (Ningxia Fumin vegetables dehydration group co., LTD vs. Ningxia Zhengyang product import and export co., LTD ) is listed below.
Mr. Wangdong has been in practice for 15 years and specialists in commercial law.He also has expertise in intellectual property law. He has high credibility amongst his clients and has accumulated great respect from his foreign partners who have maintained long term business relations with him.