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Sunday, December 18, 2011

Thailand trade secrets damages


An article in the Bangkok Post on damages calculations doesn’t sound like usual mainstream media fare. But the article today
looks at this area, and the wrinkles that trade secrets cases have beyond the usual account of profits or compensation calculation based on the Plaintiffs’ losses.

The article points out two scenarios –

1. in many cases an existing product has been on the markets and so historical data on losses can be easily shown

2. if the trade secret breach doesn’t related to an existing product lost profits cannot be shown. Then Thailand’s Trade Secrets Act directs the court to look at other factors such as –

a.    The nature of the misappropriated trade secret
b.    Research and development costs
c.    Competition between the businesses of the plaintiff and the defendant
d.    The size of the markets and other factors which are difficult to quantify.

Thus trade secrets cases end up exploring many other areas of business apart from a straight sales net calculation. 

There is also an additional damages award beyond lost profits in the Thai Trade Secrets Act – it includes punitive damages for willfulness, extra damages for connected acts, even a fine payable to the government.

The article adds that although legal fees are not recoverable, given they are in other IP cases, they should be for trade secrets.

IP Komodo will publish some data on the Thai IP courts' caseload in the new year.

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