While there is no specific legislation that deals with trades secrets, there is a body of case law that deals with breaches of commercial confidence obligations, the tort of confidentiality and good faith duties that can be used to help with protecting trade secrets.

The Crimes Act 1961 contains one crime relating to theft of trade secrets. Under section 230 of the Crimes Act, a person commits a crime if that person, with intent to obtain any pecuniary advantage or to cause loss to any other person (a) dishonestly and without claim of right, takes, obtains, or copies any document or any model or other depiction of any thing or process containing or embodying any trade secret, knowing that it contains or embodies a trade secret; or (b) dishonestly and without claim of right, takes or obtains any copy of any document or any model or other depiction of any thing or process containing or embodying any trade secret, knowing that it contains or embodies a trade secret.

Some statutes also provide exceptions to disclosure obligations where trade secrets would be disclosed. For example, under the Privacy Act, agencies can refuse access to personal information where disclosure of that information would disclose a trade secret. However, this is subject to considerations of whether it would be desirable in the public interest to make that information available. Another example is the Double Taxation Relief regime that prevents the exchange or disclosure of information that would disclose trade secrets.

Membership in International Conventions

– Paris Convention for the Protection of Industrial Property, Stockholm Act.
– WTO's TRIPS Agreement.

Protection

Definition: Common law definition: (1) it is information that is not generally known or readily accessible to others; (2) the information is of value to the possessor of the information; and (3) reasonable steps have been taken by the possessor to keep the information a secret. The Crimes Act 1961 definition: any information that (1) is or has the potential to be, used industrially or commercially; (2) is not generally available in industrial or commercial use; (3) has economic value or potential economic value to the possessor of the information; and (4) is the subject of all reasonable efforts to preserve its secrecy.

Criteria for enforcement: protection for trade secrets can last as long as the information has the necessary quality of confidence and otherwise meet the requirements set out above.

Assignment - licensing: there is no clear right of property in trade secrets in New Zealand, so strictly speaking they cannot be assigned/sold or licensed. However, through contractual drafting, the effect of a transfer or a license can be achieved.

Remedies for misappropriation: the main remedies for infringement of trade secrets are injunctions, damages and account for profits. In certain circumstances, it may also be possible to claim punitive damages. A person may be liable for up to five years imprisonment for taking, obtaining or copying trade secrets. To prove criminal liability, it must be shown there was an intention to obtain a pecuniary advantage or cause a loss to another and to do any of the above-mentioned acts with the knowledge that the information contains or embodies a trade secret. Note: there is limited case law relating to criminal liability in New Zealand for taking, obtaining, or copying trade secrets under section 230 of the Crimes Act. Most judicial decision regarding trade secrets and confidential information in New Zealand comes from the employment jurisdiction. Former employees can be successfully restrained from using confidential information that can amount to trade secrets, be found to be in breach of their employment agreement and the duties of good faith.