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Intellectual Property and Commercial Court


2014 Min Zhan Kang Zi No. 9

Decision No. 2014 Min Zhan Kang Zi No. 9
Date January 8, 2015
Decision Highlight

Article 11 section 1 of The Trade Secret Act stipulates that: If a trade secret is infringed, the injured party may request for the removal of such infringement. If there is a likelihood of infringement, a prevention may be requested. Infringement Prevention is a right to prevent certain actions. If there is something that interferes, or if there exists the likelihood of interfering, the full realization of the right, the owner of the right is entitled to claim the removal of the interference, in order to preserve the integrity of the rights or to prevent the violation of the rights. This also applies to the protection of Trade Secrets. Article 148 section 2 of the Civil Code stipulates that “A right shall be exercised and a duty shall be performed in accordance with the means of good faith.” In addition, the most important purpose of the “covenant not to compete” is to protect the trade secrets of the former company. Also trade secrets are based on industrial and business ethics, so we should emphasize more on the importance of good faith. The defendant served as a senior manager of “○○○” in the company of the counter party, was responsible for leading the team to expand the product market of all related connectors of the mobile phone. The defendant should be very familiar with the business or trade secrets of the company of counter party. The signing of a covenant not to compete for 2 years on the date XXXX/XX/XX should be reasonable. On the other hand, the defendant applied for unpaid leave on date XXXX/XX/XX, for the reason that his daughter was sick. He had to leave to take care of his daughter, so he can't continue with his current job, during the period from the date XXXX/XX/XX to XX/XX. However, during the period of leaving without pay, the defendant actually went to the ○○ company as a general manager. The main business of the ○○ company includes R&D, manufacturing and sales of connectors, optical fiber/high-frequency connectors and connection lines. The business is competing with the company of counter party. According to the covenant article 5.1 and the Declaration article 3, 7 on the application for leaving without pay, the defendant shall not engage in any act that competes with the business of the counterpart company during his term of office or during the period of unpaid leave, nor may he engage in work that is unrelated to the reasons to the unpaid leave. However, the defendant actually served as the general manager of ○○ company during the period of the unpaid leave. According to the information provided by ○○ company, ○○○ was formerly the chairman and general manager of the company. After the personnel changes, the defendant became the general manger, we can see that the defendant must be very important to the ○○ company. Therefore, there is high possibility that the behavior of the defendant violates the “covenant not to compete” signed by the two parties. If a defendant continues to work for ○○ company or its affiliated companies, the performance of defendant on the “covenant not to compete” and “confidentiality obligation” encounters is interfered or is likely to be interfered, which should cause irreparable damage to the counter party. The defendant can still work in other companies. Moreover, this case involves disputes over private employment contracts, which has nothing to do with the public interests. We should believe that the counter party had made a preliminary showing on the possibility of winning the suit, and whether the approval or rejection of the motion will cause irreparable damage to the defendant or the opposite party.In addition, the defendant couldn’t make a preliminary showing on how this case affects the public interests. Therefore, the counter party claimed that the defendant should not work for ○○ company or its affiliated companies, and the claim for the prohibition of non-competition according to the covenant article 5.2, 5.3, as the ruling of the first trial shows, should be admitted.


Trade Secrets、Good Faith、Infringement Prevention

Relevant statutes Article 538 Paragraph 1 of the Code of Civil Proc
  • Release Date:2020-11-13
  • Update:2020-12-07