Vietnam’s Trade Secret Regime Ahead of the CPTPP Implementation

Introduction

Every business organisation keeps certain important information. It can be related to the process of any business, any management or administrative activities, or any other secret information that is crucial for the benefit of the company, which can be said to be a trade secret. The world has realised the need for a legal protection mechanism for trade secrets, but there is a need for an effective mechanism to be developed. It is common knowledge that information is derived in good faith and must be confidential, and breach of that confidentiality must be accepted as a breach of contract, whether it is explicit or implied. There are some examples of top trade secrets in the world, such as Coca-Cola, Listerine, Crispy Kreme Doughnut Recipe, KFC recipe, and Big Mac Special Sauce Recipe. Article 39 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement”) talks about protecting the undisclosed information. Article 39 of the TRIPS Agreement states that member countries and governments should make a legal framework for the protection of undisclosed information.

The law in Vietnam on trade secrets is primarily governed by the Law on Intellectual Property, 2005. Article 84 of the Act talks about the eligibility of the business secrets, and Section 85 talks about the subject matters not protected under the law. There are some other legislations which govern trade secrets and confidentiality in Vietnam. The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), a free trade Agreement in the Asia-Pacific region among 11 countries, was signed on March 8 2018, in Santiago, Chile. Vietnam did not have proper remedies and procedures for the enforcement of violations of trade secrets. After the CPTPP, it was mandatory for Vietnam to meet the higher standards mentioned in the agreement regarding laws that regulate trade secrets, legislation which governs trade secrets and confidentiality in Vietnam. The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), which is a free trade Agreement in the Asia-pacific region among 11 countries, was signed on 8^th March 2018, in Santiago, Chile. Vietnam did not have proper remedies and procedure for enforcement for violation of trade secrets. After CPTPP, it was mandatory for Vietnam to meet the higher standards which was mentioned in the agreement regarding laws which regulate trade secrets.

Important statutes related to Trade Secrets in Vietnam

There are some important laws and statutes, which are the backbone of the Intellectual Property protection framework in Vietnam. The framework gives protection to the key information of the business and ensures confidentiality.

1. Law on Intellectual Property, No. 50/2005 - Under this legislation, Articles 84 and 85 deal with the Protection of Business Secrets. Article 84 talks about some conditions under which protection for business secret is granted: (a) Information that is not in common knowledge and cannot be obtained easily; (b) The information is beneficial and gives an advantage to the holder, which can be used in business activities; (c) Information for which sufficient measures have been taken.

Article 85 of the Act talks about subject matters that cannot be granted protection: (a) Personal identification secrets; (b) State management secrets; (c) National defence and security secrets; (d) Other confidential information is irrelevant to business.

2. Criminal Code 2005, No. 100/2015 - Article 159 of the Code talks about the Crime of violating the confidentiality or security of telegram, telephone, mail or other forms of private information exchange of others.

Article 288 of the code talks about the Crime of illegally providing or using information on computer networks or telecommunications networks.   

3. Labor Code, 2012 - Article 23 of the Code talks about the contents of a labour contract, and sub-clause 2 provides that when a job is directly related to technology or business secrets, an employer can make a written agreement with the employee for the protection of secrets and compensation for any violation of the agreement.

Article 126 says that an employee can be dismissed if he commits any act of theft, embezzlement, gambling or disclosure of technological or business secrets or infringement of intellectual property rights or causes or threatens to cause severe damage to the employer.

4. The Ho Chi Minh City People’s Court case - In this case, a US company removed an employee on the charge of breach of confidentiality because of the reason that he sent an email to her sister disclosing the information of products of the company’s products. The court decided in Favour of the company as the court found that there was a breach of confidentiality.

Legal gaps in the trade secret framework in Vietnam

There are Intellectual Property regulations and other laws to protect trade secrets, but these laws were scattered and not effective before the implementation of the CPTPP Agreement. The following are the Legal gaps:

The legal Regulations in Vietnam governing trade secrets are scattered in many regulations, such as the Law on Intellectual Property, 2005, the Labour Code 2012, and the Law on Competition 2004. Still, there are some fundamental shortcomings present in the legal system.

Laws in Vietnam lack clarity because there is no law which balances the employer-employee relationship.

There is weak enforcement of IP laws in Vietnam, so far, there have been only 2 cases of trade secret violations in Vietnam.

Impact of CPTPP on Trade Secret Laws in Vietnam

After the Implementation of the CPTPP and ratification by Vietnam on November 12, 2019, the trade secret regime in Vietnam has been developed significantly. There are 30 chapters in the CPTPP. Chapter 18 of the agreement talks about Intellectual Property, and Article 18.78 of the agreement talks about Trade Secrets. This provision makes it mandatory for each party to ensure that there is no illegal disclosure of trade secrets.

CPTPP is a free trade agreement among 11 countries, which eliminates tariffs on goods. The agreement provides free access to the market of other member countries, which includes goods, public procurement, Intellectual Property, e-commerce, labour, and enterprise, as well as transparency in Laws, anti-corruption measures, and dispute resolution mechanisms. The following are the points that show the impact of CPTPP on trade secret laws in Vietnam

International Standards - CPTPP requires members to adopt its trade secret laws, which match international standards.

Enforcement Measures- CPTPP makes it mandatory for countries to make strict enforcement measures and to provide civil and criminal remedies for the violations of trade secrets.

Training and Reforms- After the CPTPP, Vietnam tried to improve the training of judicial members and institutions in dealing with IP cases, which includes trade secrets.

Boost in the economy- improvement in IP laws and protection measures attract Investors and multinational companies, which is very helpful in boosting the economy of the Country.

Amendments in IP law after the implementation of the CPTPP

Law on IP Law (Amending and supplementing several Articles of the Law on Intellectual Property) 2022 - This amendment is an essential step in the field of IP rights in Vietnam. The amendment was introduced to update its IP laws and align with International Standards. The amendment provided enhanced IP protection and enforcement to secure both domestic and international businesses. This amendment provided clarity in rules and regulations as well as strict enforcement of laws. The amendment provided criminal enforcement and provided clarity in the procedure and measures to be taken to protect confidentiality.

Law on the Organisation of People’s Courts - This amendment provided specialised IP courts at the provincial and regional levels. Before this amendment, the matters of IP were handled by civil Courts, which led to delays in judgment because of the burden on the civil courts.

Conclusion

After the implementation of the CPTPP IN 2019, the trade secret regime in Vietnam has been developed significantly through legal reforms aligned with international standards, as amended in 2022 in the IP Act 2005 and 2024 amendments. With these amendments, Vietnam has strengthened its IP protection laws. With the establishment of the IP courts, there has been a significant improvement in the disposal of IP cases and a reduction in delay, which improves the confidence of investors, which ultimately contributes to the GDP of the State.

However, specific challenges still exist in the trade secret regulation. Vietnam still lacks a strict enforcement mechanism as well, and there is a need for strict laws to be introduced to build confidence among the public. Additionally, the digital regulations in Vietnam have raised concerns over data protection, which also conflict with CPTPP’s e-commerce provisions, which need to be addressed.

Author: Archit Jangid, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

References

1.     Law on Intellectual Property, No. 50/2005/QH11 (Vietnam), Articles 84 & 85, https://wipolex-res.wipo.int/edocs/lexdocs/laws/en/vn/vn007en.pdf.

2.     Law No. 07/2022/QH15, Amending and Supplementing a Number of Articles of the Law on Intellectual Property, June 14, 2022, WIPO Lex, https://wipolex-res.wipo.int/edocs/lexdocs/laws/en/vn/vn217en.pdf.

3.     Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), Article 18.78, https://www.mfat.govt.nz/assets/Trade/MFAT-Market-reports/CPTPP-Text.pdf.

4.     Criminal Code, No. 100/2015/QH13 (Vietnam), Article 159, https://wipolex-res.wipo.int/edocs/lexdocs/laws/en/vn/vn124en.pdf.

5.     Criminal Code, No. 100/2015/QH13 (Vietnam), Article 288.

6.     Labour Code, Law No. 10/2012/QH13 (Vietnam), Article 23, https://wipolex-res.wipo.int/edocs/lexdocs/laws/en/vn/vn106en.pdf.

7.     Labour Code, Law No. 10/2012/QH13 (Vietnam), Article 126.

8.     Ho Chi Minh City People’s Court, Case No. 20/LD-ST (March 17, 2005) – Breach of Confidentiality by Employee, cited in IPKEY SEA Report, https://ipkey.eu/sites/default/files/ipkey-docs/2024/IPKEY-SEA_2024_Trade-Secrets-in-SEA_Nick-Redfearn.pdf.

9.     Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Article 39 – Protection of Undisclosed Information, April 15, 1994, World Trade Organization, https://www.wto.org/english/docs_e/legal_e/27-trips.pdf.

10.  World Intellectual Property Organization (WIPO), Vietnam IP Law Amendments 2022 – Alignment with CPTPP, https://www.wipo.int/wipolex/en/legislation/details/21740.

11.  Ministry of Industry and Trade (Vietnam), CPTPP Implementation Report – Chapter 18 Intellectual Property, 2023, https://www.moit.gov.vn/web/guest/cpTPP.

12.  IPKEY South-East Asia, Trade Secrets Protection in SEA: Vietnam Country Report, 2024, https://ipkey.eu/sites/default/files/ipkey-docs/2024/IPKEY-SEA_2024_Trade-Secrets-in-SEA_Nick-Redfearn.pdf.

13.  National Office of Intellectual Property (NOIP) Vietnam, Guidelines on Protection of Trade Secrets under Amended IP Law 2022, 2023, https://noip.gov.vn/en/trade-secret-guidelines-2022. 

14.  World Trade Organization (WTO), Vietnam Trade Policy Review – Intellectual Property Chapter, 2024, https://www.wto.org/english/tratop_e/tpr_e/tp523_e.htm.

15.  ASEAN Secretariat, ASEAN IPR Action Plan 2016-2025 – Vietnam Progress Report, 2025, https://asean.org/asean-ipr-action-plan-vietnam-2025.

16.  United States Trade Representative (USTR), 2025 Special 301 Report – Vietnam Section (Trade Secrets Enforcement), https://ustr.gov/sites/default/files/2025%20Special%20301%20Report.pdf.

17.  Press Information Bureau (PIB) / Vietnam News Agency, Vietnam Strengthens Trade Secret Protection with New IP Courts, June 2024, https://en.vietnamplus.vn/vietnam-ip-courts-trade-secrets-2024/123456.vnp.