Intellectual Property 2026 Comparisons

Patent protection in Japan is governed by the Patent Act, with judicial precedents providing important interpretations. The Japan Patent Office (JPO) follows internal regulations, but these are not legally binding.

Under Article 2, Paragraph 1 of the Patent Act, a patentable invention is defined as “the highly advanced creation of technical ideas utilising the laws of nature”. Natural laws, abstract discoveries, mathematical formulas and mental activities are excluded. However, software, business model and AI-related inventions may qualify if they utilise natural laws.

An invention must also be industrially applicable; thus, methods of medical treatment are not patentable.

Utility models are protected under the Utility Model Act, and are limited to devices concerning the shape or structure of articles. They require a lower inventive step and are protected for ten years from filing.

To obtain a patent in Japan, an application must be filed with the JPO and examined. Applications are published 18 months after filing, and examination requires a request within three years. The first Office Action is typically issued within six to 12 months, and prosecution usually takes one to two years. Once granted, the patent is valid for 20 years from filing.

Costs include official fees and professional fees, with total expenses generally ranging from USD10,000 to USD30,000.

A patentee has the right to exclusively practise the patented invention, and may seek an injunction and damages against any unauthorised use.

The standard patent term is 20 years from the filing date.

Maintenance fees must be paid to keep the patent in force. Failure to pay results in lapse; however, non-payment may be remedied within a six-month statutory grace period upon payment of overdue fees and a surcharge. Even after this period, restoration may be possible under certain conditions if the failure was unintentional.

A patent term extension may be granted to compensate for delays in examination, particularly where registration occurs more than five years after filing or three years after the examination request, whichever is later. In addition, extensions of up to five years are available for pharmaceuticals and agricultural chemicals, to compensate for periods during which the invention could not be used due to regulatory approval requirements.

The right to obtain a patent generally belongs to the individual inventor. However, in the case of employee inventions, this right may belong to the employer if so provided by contract, work rules or other agreements. The same rules apply to inventions made at universities or other educational institutions.

Before filing, a transfer of the right takes effect upon agreement between the parties, and filing is required only to assert it against third parties. After filing, however, the transfer becomes effective only upon notification to the JPO, except in cases of general succession.

Japan recognises two types of patent licences:

• a registered exclusive licence, which requires registration and grants rights similar to those of a patentee; and
• a general licence, which becomes effective by agreement, with registration needed only for third-party effect, and, in principle, does not confer the right to seek an injunction, even if contractually exclusive.

Direct Infringement

Direct infringement occurs when an unauthorised party “practises” a patented invention. For product inventions, this includes making, using, selling, importing/exporting, or offering the product; for process inventions, using the process; and for product-by-process inventions, using the process or handling resulting products. To establish infringement, all claim elements must be satisfied, subject to limited exceptions, such as indirect infringement and the doctrine of equivalents.

Indirect Infringement

Indirect infringement arises from activities involving items related to a patented invention, even without direct practice. It includes supplying products exclusively used or indispensable for the invention with knowledge of the patent and intended use, as well as possessing infringing products for sale or export.

Doctrine of Equivalents

Under the Doctrine of Equivalents established by the Supreme Court, an accused product or process may infringe a patent even if it does not literally satisfy all claim elements, provided certain conditions are met.

Equivalence is recognised where:

• the differing feature is not an essential part of the patented invention;
• replacing that feature with the corresponding element of the accused product or process still achieves the same function and effect;
• such replacement would have been easily conceived by a person skilled in the art at the time the accused product or process was made;
• the accused product or process is not identical to prior art at the time of filing, nor easily derived from it; and
• there are no special circumstances, such as intentional exclusion of the accused feature from the claims during prosecution.

Defences

The principal defences available in Japanese patent infringement litigation include the following.

Patent invalidity

An alleged infringer may argue that the patent should be invalidated. Japanese courts may effectively consider invalidity within infringement proceedings.

Prior user right

A person who independently created the invention without knowledge of the patent application, and who was already practising or preparing to practise it in Japan at the filing date, is granted a statutory non-exclusive licence limited to the existing or planned business.

Patent exhaustion

Patent rights are exhausted once a patented product is lawfully sold in Japan by the patentee or an authorised licensee, preventing control over subsequent use or resale. International exhaustion is also recognised, subject to certain restrictions clearly imposed and indicated.

Employee invention licence

Employers have a royalty-free non-exclusive licence to utilise inventions made by their employees.

Proportionality

Proportionality may be considered in calculating damages, and courts may reduce damages accordingly.

FRAND defence (SEPs)

In standard essential patent (SEP) cases, seeking an injunction against a willing licensee may constitute an abuse of rights. While Japanese courts have traditionally been cautious in granting SEP injunctions, recent developments in 2025–2026 suggest a potential shift, with greater emphasis on the parties’ willingness to negotiate FRAND terms.

Jurisdiction

In Japan, patent infringement cases at first instance are handled exclusively by the Tokyo and Osaka District Courts. Appeals are heard by the Intellectual Property High Court, with potential further appeal to the Supreme Court. First instance proceedings take approximately 14 months on average, with appeals requiring about eight further months, although complex cases may take significantly longer.

Parallel Proceedings

An alleged infringer may challenge patent validity both as a defence in court and by initiating invalidation proceedings before the JPO. Court findings on invalidity are inter partes only, whereas a final JPO decision has erga omnes effect. To ensure consistency, the Intellectual Property High Court may assign the same panel to related appeals.

Preliminary Injunctions

A patentee may seek a preliminary injunction upon showing prima facie evidence of infringement and the risk of substantial or imminent harm. Proceedings are expedited and relatively low-cost, but the patentee must provide security. If the injunction is later revoked, the patentee is generally liable for damages absent special circumstances.

Remedies

Available remedies include injunctions (permanent and provisional), damages and corrective measures. Permanent injunctions are generally granted upon a finding of infringement, except in limited cases, such as SEP disputes. Damages may be calculated based on lost profits, infringer’s profits or a reasonable royalty, with courts considering equitable factors. Claims for unjust enrichment and measures to restore business reputation may also be available.

Attorneys’ Fees and Costs

Prevailing patentees may recover a portion of attorneys’ fees as damages, typically around 10% of awarded damages. Court costs, including filing fees, are generally borne by the losing party.

Trade mark protection in Japan is built on the Trademark Act and the Unfair Competition Prevention Act (the UCPA).

Under the current Japanese Trademark Act, the signs eligible for protection extend to:

• characters;
• figures;
• symbols;
• three-dimensional shapes;
• colours (although no single colour mark has yet been registered in practice);
• motion marks;
• holograms;
• sound marks; and
• position marks.

By contrast, non-traditional marks such as scents, tastes and tactile marks are not recognised for protection.

Under the UCPA, protection is available for indications of goods or business that are well known or famous, even without registration. Such indications broadly include names, trade names, trade marks, logos and the containers or packaging of goods, as well as other source-identifying features used in connection with goods or business activities.

Trademark Act

The core requirements for obtaining trade mark registration are:

• distinctiveness, as reflected in Article 3, Paragraph 1of the Trademark Act;
• the absence of absolute grounds for refusal, such as public policy grounds under Article 4, Paragraph 1; and
• the absence of relative grounds for refusal, including conflicts with prior rights under Article 4, Paragraph 1.

As a general rule, use is not required for registration in Japan.

Even where a mark lacks inherent distinctiveness, it may be registered if it has acquired distinctiveness through use pursuant to Article 3, Paragraph 2 of the Trademark Act. Evidence typically includes sales figures, market share data, marketing materials and consumer survey evidence, where available.

UCPA

Under the UCPA, unregistered indications of goods or business may be protected where they are well known or famous. In particular:

• the use of an identical or similar indication to a well-known indication, where such use causes a likelihood of confusion, constitutes unfair competition under Article 2, Paragraph 1, Item 1; and
• the use of an identical or similar indication to a famous indication as one’s own indication of goods or business constitutes unfair competition under Article 2, Paragraph 1, Item 2, regardless of likelihood of confusion.

As noted in 2.1 Legal Framework and Protectable Signs, unregistered marks may be protected under the UCPA where they are well known or famous. However, registration under the Trademark Act is the primary and most reliable means of obtaining exclusive rights and enforcing them.

Trade mark applications are filed with the JPO, and multi-class applications are permitted. After formality and substantive examination, the JPO issues a notice of refusal if grounds for refusal exist, to which the applicant may respond with arguments or amendments. If no refusal grounds remain, the mark proceeds to registration upon payment of the registration fee. Japan is also a member of the Madrid Protocol, and international registrations designating Japan are available.

Registration is generally completed within approximately seven to eight months from filing, although accelerated examination is available in eligible cases. Applicants without a domicile or residence in Japan must appoint a local representative.

Official fees for a single-class application amount to JPY44,900, comprised of a filing fee of JPY3,400 plus JPY8,600 per class and a registration fee of JPY32,900 per class.

A notable recent development is the introduction of a consent system for conflicts with prior trade marks, allowing greater flexibility in resolving conflicts with earlier registrations.

A trade mark registration is valid for ten years from the date of registration. It may be renewed every ten years by filing a renewal application and paying the prescribed renewal fee, upon which the registration will be renewed. No substantive examination or verification of use is conducted in connection with renewal; if the renewal formalities are complied with, trade mark rights may be maintained indefinitely.

Use of a trade mark is not necessary for maintaining a registered trade mark. Therefore, the owner of the registration does not need to file any proof of use when renewing the trade mark right. However, if a registered trade mark has not been used for the designated goods or services for a continuous period of three years or more, it may become subject to a non-use cancellation trial. In principle, the “use” referred to here must constitute trade mark use, which includes not only use by the trade mark owner itself, but also use by its licensees.

Trademark Act

A registered trade mark confers on its owner the exclusive right to use the registered trade mark in connection with the designated goods and services covered by the registration.

Typical defences and limitations under the Trademark Act include:

• prior use, where the defendant used a mark that had already become well known prior to the filing of the trade mark at issue;
• generic, descriptive or non-trade mark use, where the mark is used merely to indicate the contents, quality, origin, shape, materials or other characteristics of goods or services, or where the use does not function as an indicator of source or origin;
• invalidity of the registration;
• abuse of rights;
• lack of substantive illegality, particularly in cases involving parallel imports of genuine goods; and
• a three-year statute of limitations for damages claims from the time when the trade mark owner became aware of both the infringement and the identity of the infringer, subject to an overall 20-year limitation period from the infringing act.

UCPA

Well-known or famous indications of goods or business are protected against unauthorised use through remedies such as injunctions and damages.

Typical defences and limitations under the UCPA include:

• generic or customary use of indications of goods or business;
• good-faith use of one’s own name;
• prior use of an identical or similar indication before the relevant indication became well known or famous; and
• use, without unfair purpose, of a registered trade mark in situations where identical or similar trade marks coexist as a result of registration under the Trademark Act.

Trademark Act

Trade mark infringement requires satisfaction of the following elements:

• identical or similar features between the registered trade mark and the accused mark;
• identical or similar features between the designated goods or services and the accused goods or services; and
• use of the mark in the course of trade in a trade mark manner, namely as an indication of source or origin.

The importation of goods by individual consumers in Japan from overseas generally does not constitute infringement, as such acts are not regarded as use “in the course of trade”. However, following recent amendments to the Trademark Act, acts by overseas business operators causing infringing products to be brought into Japan may constitute infringement.

The Trademark Act also recognises indirect infringement – for example, the manufacture or sale of goods used exclusively for affixing or reproducing infringing trade marks may constitute indirect infringement.

Available remedies include injunctions, damages, destruction or disposal of infringing goods and manufacturing equipment, and border enforcement measures through Japan Customs. Criminal penalties may also apply.

UCPA

As discussed in 2.2 Requirements for Trade Mark Protection, Article 2, Paragraph 1, Items 1 and 2 of the UCPA prohibit certain uses of indications that are identical or similar to well-known or famous indications.

The following remedies are available to persons whose business interests are infringed or likely to be infringed by such unfair competition:

• injunctions;
• damages;
• destruction or disposal of infringing goods and manufacturing equipment; and
• border enforcement measures through Japan Customs.

However, Customs enforcement under the UCPA requires an opinion from the Minister of Economy, Trade and Industry. Criminal penalties may also apply.

Jurisdiction

Trade mark disputes and unfair competition disputes are heard by district courts with jurisdiction over the relevant dispute, particularly the intellectual property divisions of the Tokyo District Court and Osaka District Court. Appeals are handled by the Intellectual Property High Court.

In Japan, copyright protection is governed by the Copyright Act, Article 10 of which provides a non-exhaustive list of examples of works eligible for copyright protection, including:

• novels, scenarios, articles, lectures and other literary works;
• musical works;
• works of choreography and pantomime;
• paintings, woodblock prints, sculptures and other works of fine art;
• works of architecture;
• maps and other diagrams of an academic nature, such as plans, charts and models;
• cinematographic works;
• photographic works; and
• computer programs.

With respect to the copyrightability of applied art, in a judgment rendered on 24 April 2026, the Supreme Court articulated a standard for determining the copyrightability of applied art for the first time, holding that mass-produced utilitarian articles may qualify for copyright protection where “the configuration of the whole or a part of the mass-produced utilitarian products can be conceptually perceived, independently of the elements derived from their function, as a creatively produced expression of thoughts or sentiments”.

The Copyright Act defines a “work” protected by copyright as “a creatively produced expression of thoughts or sentiments that falls within the literary, academic, artistic, or musical domain” (Article 2, Paragraph 1, Item 1). To qualify as a copyrightable work, it must satisfy the requirement of creativity; it is sufficient that some element of the author’s individuality is expressed. Fixation is not required for copyright protection. Copyright arises automatically upon the creation of a work and does not depend on the fulfilment of any formalities, such as registration.

The Copyright Act defines an “author” as “a person who creates a work” (Article 2, Paragraph 1, Item 2). To qualify as an author, a person must be substantively involved in the creative process; a person who merely proposes or provides instructions for the creation of a work does not qualify as an author.

A “joint work” is defined as “a work created by two or more persons whose contributions to the work cannot be separated so as to allow each part of the work to be used independently” (Article 2, Paragraph 1, item 12). In such cases, the co-authors jointly hold the copyright. The co-authors may not use the work, license it to third parties, or transfer their shares without the consent of the other co-authors, although such consent may not be unreasonably withheld (Article 65, Paragraphs 1 through 3).

A work made for hire is recognised where a work is created by an employee (or a director) in the course of their duties, at the employer’s initiative, and is, or is intended to be, made public under the employer’s name. In these circumstances, the employer is regarded as the original author and holds both the copyright and the moral rights. As a general rule, works created by independent contractors do not qualify as works made for hire.

Economic Rights

The Copyright Act vests authors with exclusive economic rights, including the rights of:

• reproduction;
• public performance (such as stage and musical performances);
• public screening;
• public transmission;
• public recitation of literary works;
• public exhibition of artistic or unpublished photographic works;
• distribution of cinematographic works by transfer or rental;
• making non-cinematographic works available to the public through transfer or rental; and
• translation or adaptation.

They also have the right of the original author in connection with the exploitation of derivative works.

Moral Rights

Authors are granted moral rights, consisting of the rights of publication, attribution and integrity. The exploitation of a work that harms the author’s honour or reputation constitutes an infringement of these moral rights.

Moral rights are non-assignable, non-inheritable and non-waivable; however, an author may agree not to exercise such rights. Even after the author’s death, any conduct that would have constituted an infringement of moral rights had the author been alive is prohibited, and the author’s surviving family members may seek an injunction against such conduct.

Copyright protection commences upon creation and generally subsists for 70 years after the author’s death (Article 51). For anonymous or pseudonymous works, works attributed to a corporation or other organisation, and cinematographic works, copyright subsists for 70 years from publication (Articles 52, 53 and 54).

The Japanese Copyright Act does not recognise termination or reversion rights, allowing copyright holders to grant assignments or licences of indefinite duration without any statutory right of termination or reversion.

The Copyright Act provides for no general fair use or fair dealing. Accordingly, unauthorised use may constitute copyright infringement unless justified by a specific statutory copyright exceptions. The principal copyright exceptions frequently relied upon are as follows.

Reproduction for Private Use (Article 30)

A work may be reproduced for personal use, family use or other similarly limited purposes. However, this copyright exception does not apply in certain limited cases, such as where a person reproduces, by downloading, content that has been illegally distributed on the internet, while being aware of its illegality.

Exploitations of Incidentally Captured Works (Article 30-2)

In the course of taking photography, sound or visual recording, broadcasting or similar activities, works (such as objects or sounds) that are incidentally captured may be used within a reasonable scope, provided that they constitute only a minor part of the resulting material, having regard to factors such as proportion in the material in which they are used and the accuracy of their reproduction therein.

Quotations (Article 32, Paragraph 1)

A published work may be quoted, provided that the quotation is consistent with fair practice and within a scope justified for the purpose, such as news reporting, criticism or research.

Performances for Non-Commercial Purposes (Article 38, Paragraph 1)

A published work may be publicly performed, presented on screen or recited if such acts are undertaken for non-commercial purposes, no fee is charged to the audience, and no remuneration is paid to the performers or reciters.

Exploitation of Artistic Works on Public Display (Article 46)

An artistic work permanently installed in an outdoor location, or an architectural work, may be exploited in any manner, except in certain cases, such as reproducing an artistic work for the purpose of selling copies or offering such copies for sale.

Where a work is exploited without the authorisation of the copyright holder, it constitutes copyright infringement unless it is justified under a statutory copyright exception. A copyright holder may pursue both civil remedies and criminal sanctions in respect of copyright infringement.

As with patent infringements, civil remedies include injunctions, damages and corrective measures. No statutory damages exist, but damages may be calculated by several methods. The most frequently used method is that set forth in Article 114, Paragraph 3, under which a copyright holder may claim an amount equivalent to the licence fee that would have been received had a licence been granted prior to the exploitation of the work. Courts may award damages in excess of the ordinary licence fee, such as 1.5 to 2 times.

In cases of infringement of moral rights, under Article 115 an author may also seek measures to restore honour or reputation, such as the publication of an apology.

To establish copyright infringement, both access to the original work and similarity must be demonstrated. Similarity is recognised where the essential expressive features of the original work can be directly perceived from the allegedly infringing work.

Where the specific expressions differ, similarity is generally denied. However, infringement may still arise through non-literal copying, particularly where the works share the same structure, sequence or organisation, provided such elements constitute creative expression. For example, for compilation works, infringement may be established where the selection or arrangement of materials is substantially similar. By contrast, for software, copyright protects the expression in the source code rather than the function itself. Accordingly, where no similarity is found at the level of source code, infringement is generally denied, even if both programs perform the same function.

Copyright Management Organisations

In Japan, copyright management organisations (CMOs) operate under the Act on Management Business of Copyright and Neighbouring Rights. CMOs must be registered with the Commissioner of the Agency for Cultural Affairs, establish standard contract terms to be applied between the CMO and copyright holders, and prepare tariff schedules, all of which must be filed in advance with the Commissioner. CMOs may not refuse licences for managed works without justifiable grounds.

Two types of management entrustment exist: agency agreements and trust agreements for assignment. In a trust agreement, copyright is transferred to the CMO, which has authority to enforce such copyright, while the original copyright holder loses such authority during the management period.

Licence Granted By the Commissioner of the Agency for Cultural Affairs

The Copyright Act provides a mechanism similar to compulsory licensing. For example, if a user cannot locate the copyright holder despite reasonable efforts being made, the user may obtain a licence from a Commissioner and exploit the work by depositing compensation determined by the Commissioner (Article 67).

Industrial designs and trade dress are protected in Japan mainly under the Design Act and the UCPA.

Under the Design Act, protection is available for designs that create an aesthetic impression through visual perception and fall within one of the following categories:

• the shape, patterns, colours or combinations thereof of articles, including parts of articles;
• the shape, patterns, colours or combinations thereof of buildings, including parts of buildings; and
• images, including graphical user interfaces (GUIs), used for operating devices or displayed as a result of device functions.

Under Article 2, Paragraph 1, Item 3 of the UCPA, the “configuration of goods” is protected against imitation for three years from the first introduction of the goods into the Japanese market. This includes the external and internal shape of goods, as well as patterns, colours, gloss and texture perceptible during ordinary use. Product containers and packaging may also constitute the “configuration of goods” where they are integrated with and inseparable from the goods themselves. Product parts independently traded in the market, as well as combinations of goods, may also constitute protectable “configurations of goods”.

Trade dress may also be protected under Article 2, Paragraph 1, Items 1 and 2 of the UCPA. Although product configuration is not generally regarded as inherently functioning as a source identifier, Japanese courts have recognised protection for various product configurations, including bags, shelving systems, medical devices, cosmetic masks and even the exterior appearance of restaurants in certain circumstances.

Under the Design Act, a design must satisfy the following requirements:

• industrial applicability;
• novelty;
• creative non-obviousness;
• no conflict with another prior-filed design application;
• compliance with the first-to-file rule; and
• the absence of statutory grounds for refusal, including designs consisting solely of shapes indispensable for securing the function of the relevant article, building or image.

Under Article 2, Paragraph 1, Item 3 of the UCPA, novelty and creative non-obviousness are not required. However, configurations indispensable for securing product function are excluded from protection, as are ordinary configurations commonly found in similar goods. Protection extends only to configurations developed and marketed through the developer’s own investment and effort, and does not extend to configurations derived from imitation of another person’s goods.

Under Article 2, Paragraph 1, Items 1 and 2 of the UCPA, product configuration is protected only where it functions as a source identifier. Courts require:

• distinctiveness compared with similar goods; and
• well-known status among relevant consumers and traders.

Configurations inevitably resulting from functional requirements are generally excluded.

Applications for design registration are filed with the JPO together with drawings, photographs or other visual representations identifying the relevant article, building or image. The JPO then conducts a substantive examination, including review of novelty and creative non-obviousness; if grounds for refusal are raised, the applicant may submit arguments or amendments. After allowance and upon payment of the registration fee, the design right is registered and comes into effect. Japan is also a contracting party to the Hague Agreement, allowing applicants to designate Japan through an international design application.

Under standard examination, the average period from filing to the first office action is approximately six months, and the average period from filing to registration is approximately 6.8 months. Accelerated examination is available for eligible applications, including designs already in use or planned to be used.

Applicants without a domicile or residence in Japan are required to act through a local representative, particularly where responses to office actions are necessary. Official fees for a single design application include a filing fee of JPY16,000 and annual registration fees after registration (eg, JPY8,500 for the first year and JPY16,900 per year from the second year onward).

A registered design is protected for 25 years from the filing date and is not renewable.

Design infringement requires:

• identical or similar features between the registered design and the accused design;
• identical or similar feature between the relevant articles, buildings or images; and
• the implementation of the design in the course of trade, such as manufacture, use, assignment, importation or offering for assignment.

Importation for purely personal use does not generally constitute infringement. However, acts by overseas business operators causing infringing products to be brought into Japan may constitute infringement.

The Design Act also recognises indirect infringement. For example, manufacturing or selling products used exclusively for manufacturing articles embodying a registered design may constitute infringement. Available remedies include injunctions, damages and border enforcement measures through Customs. Criminal liability may also arise.

Under Article 2, Paragraph 1, Item 3 of the UCPA, infringement consists of transferring, leasing, displaying, exporting, importing or providing through telecommunication lines goods that imitate another person’s product configuration. “Imitation” requires both reliance on another person’s configuration and substantial identity between the configurations. Commercial activities conducted in virtual spaces may also fall within the scope of this provision.

Please see 2.6 Trade Mark Enforcement and Remedies regarding the available remedies relating to Article 2, Paragraph 1, Item 3 of the UCPA, as well as further details regarding Article 2, Paragraph 1, Items 1 and 2.

Article 5, Item 3 of the Design Act excludes from protection designs consisting solely of shapes indispensable for securing the function of an article, the use of a building or the operation of an image. The JPO Examination Guidelines classify such functional shapes into two categories:

• shapes inevitably determined to achieve the relevant function; and
• shapes determined by standardised specifications adopted for compatibility or similar purposes.

Because the exclusion applies only where the design consists solely of such functional shapes, additional decorative elements such as patterns or colours are disregarded when assessing functionality.

Japanese law also recognises partial designs. However, where the relevant part consists solely of functionally indispensable shapes, the design may be refused or invalidated.

Similar considerations regarding functionality and technical necessity also apply under the UCPA when assessing whether a product configuration may function as a protectable indication of goods or business.

Protection of Trade Secrets

In Japan, trade secret protection is principally governed by the UCPA, under which a “trade secret” is defined as technical or business information useful for business activities, such as manufacturing methods or sales methods, that is managed as secret and is not publicly known (Article 2, Paragraph 6).

To qualify for protection as a trade secret, the information must satisfy the following three requirements:

• secrecy management – the information must be managed as secret;
• usefulness – the information must be useful for business activities; and
• non-public nature – the information must not be publicly known.

Typical examples of protectable trade secrets include technical information (such as manufacturing methods and design drawings) and business information (such as customer information and business plans).

Requirements for Secrecy Management

In order for the secrecy management requirement to be satisfied, it is generally understood that measures for managing the information as secret must be taken, such as access restrictions or “Confidential” markings, to such an extent that employees and other persons who may lawfully and practically access the information can recognise that the information is intended by the company to be kept secret.

The specific nature and level of secrecy management measures required will vary depending on the size of the company, the nature of its business, the duties of its employees and other relevant persons, the nature of the information, and other relevant circumstances.

The mere fact that information has been disclosed to employees or business partners does not, by itself, mean that secrecy management is lost. The key issue is whether the company has taken sufficient measures to create an awareness that the information should be treated differently from ordinary information.

Trade Secret Misappropriation

The UCPA enumerates acts that constitute misappropriation of trade secrets. Broadly speaking, these acts may be categorised as follows:

• acquiring, using or disclosing a trade secret without authority (Section 1, Article 2, Paragraph 1, Item 4);
• acquiring, using or disclosing a trade secret while knowing, or being grossly negligent in failing to know, that it was acquired by improper means (Section 1, Article 2, Paragraph 1, Items 5 and 8);
• using or disclosing a trade secret after subsequently becoming aware, or through gross negligence failing to become aware, that it was acquired by improper means (Section 1, Article 2, Paragraph 1, Items 6 and 9);
• where a trade secret has been disclosed by the trade secret holder, using or disclosing the trade secret for the purpose of obtaining an improper benefit or causing damage to the trade secret holder (Section 1, Article 2, Paragraph 1, Item 7); and
• transferring goods produced through the improper use of a trade secret, knowing, or through gross negligence in failing to know, that they were produced through such improper use (Section 1, Article 2, Paragraph 1, Item 10).

Notably, liability may attach even where the requisite knowledge or gross negligence arises after acquisition, rather than at the time of acquisition itself.

Please see 5.5 Enforcement and Remedies regarding the remedies available under the UCPA.

Duration of Trade Secret Protection

There is no fixed statutory term of protection for trade secrets: trade secret protection continues to apply as long as the relevant requirements are satisfied.

However, an injunction claim against the improper use of a trade secret may no longer be exercised by operation of the statute of limitations if:

• three years have passed from the time when the trade secret holder became aware of both the improper use and the identity of the person engaging in such conduct; or
• 20 years have passed from the commencement of the improper use (UCPA Article 15).

Protection in the Event of Accidental Disclosure

If a trade secret is accidentally disclosed to a third party, that fact alone does not necessarily mean that the information ceases to be a trade secret. However, if the three requirements described in 5.1 Legal Framework and Protectable Information are no longer satisfied, the information may no longer be protected as a trade secret. For example, if an employee accidentally publishes trade secret information on the internet and makes it accessible to anyone, the information may lose its non-public nature and may no longer be eligible for trade secret protection thereafter.

Civil Remedies

Where a trade secret has been misappropriated, the trade secret holder may seek civil remedies, including:

• contractual remedies, where the misappropriation also constitutes a breach of an NDA or other contract;
• disciplinary action, where the misappropriating party is an employee, depending on the circumstances;
• injunctive relief under the UCPA, including an injunction against the infringing conduct, destruction of infringing goods, removal of facilities, or other measures necessary to suspend or prevent the infringement (Article 3); and
• damages under the UCPA (Article 4).

Protection of Trade Secrets in Litigation

The UCPA provides mechanisms to preserve the confidentiality of trade secrets during litigation, including:

• a confidentiality protective order under Article 10; and
• restriction of public access to examination of parties and witnesses under Article 13.

A confidentiality protective order prohibits the use of trade secrets contained in litigation materials for purposes other than the conduct of the litigation, and prohibits the disclosure of such trade secrets to persons who are not subject to the order.

Restriction of public access to examination of parties and witnesses is an exceptional mechanism under which all or part of the examination may be conducted in closed proceedings.

Criminal Sanctions

Criminal sanctions are also available for trade secret misappropriation. Among acts of trade secret misappropriation constituting unfair competition, particularly malicious types of conduct may be punishable as criminal offences involving trade secret misappropriation.

For individuals, the penalties may generally include imprisonment for up to ten years, a fine of up to JPY20 million, or both. For aggravated offences involving, for example, use of the trade secret outside Japan, the maximum fine may be increased to JPY30 million.

Corporations may also be subject to criminal fines under the dual liability provisions. The maximum corporate fine may be up to JPY500 million for ordinary offences, and up to JPY1 billion for aggravated offences involving, for example, use of the trade secret outside Japan.

The term “know-how” is not defined under Japanese statutory law. In practice, it is often used to refer broadly to non-public information that is useful for business activities.

Know-how may include information that qualifies as an “invention” under the Patent Act and may therefore be the subject of a patent application. It may also include information protected as a trade secret under the UCPA, or information designated contractually as “know-how” by the parties. Accordingly, know-how is a more abstract concept that may encompass these various types of information.

Because know-how is not a legally defined concept, there are no statutory requirements that must be satisfied for information to be protected as know-how. However, given the nature of know-how, it is generally understood that the information must be non-public.

Ownership of Know-How

If the know-how is created in the course of the employer’s business operations and constitutes the employer’s confidential business information, the employee owes a duty under the employment contract to maintain the confidentiality of the employer’s confidential information, and not to use or disclose it without authorisation.

In addition, materials, data and other records created or obtained in the course of work may be subject to obligations to deliver, return or delete them upon termination of employment, depending on the work rule or other applicable arrangements.

Accordingly, information constituting know-how is considered to belong to the company.

In addition, where know-how is embodied in works, inventions, developments or other protectable results created in the course of work, the relevant intellectual property rights may belong to, or be transferred to, the employer under applicable rules or arrangements, such as rules on works made for hire or employee invention regulations.

Protection of Know-How: External Parties

There is no general statutory rule under which know-how created by a contractor or joint development partner automatically belongs to the customer or to one party. Accordingly, in practice, it is advisable to specify the ownership of know-how in outsourcing agreements and similar contracts, together with the ownership of intellectual property rights, as newly conceived technical results or deliverables.

In Japan, contractual protection of know-how is primarily intended to protect know-how as confidential information. Accordingly, it is mainly achieved through non-disclosure agreements, as well as confidentiality clauses, non-use provisions, return and destruction provisions, and ownership-of-results provisions in outsourcing agreements and similar contracts.

Know-How Licence and Assignment Agreements

In Japan, know-how is commonly the subject of contractual assignment or licensing arrangements. It may be transferred or licensed by contract even where it does not qualify as an “invention” under the Patent Act or as a “trade secret” under the UCPA.

Key Considerations for Know-How Agreements

The terms of know-how-related agreements are often based on the terms used in patent assignment or licence agreements, or trade secret assignment or licence agreements, while taking into account the particular characteristics of know-how. In particular:

• because know-how is not a registered exclusive right, the subject matter of the know-how should be clearly identified in the agreement; and
• the agreement should expressly provide for measures to ensure that the know-how does not lose its non-public nature even after termination of the agreement.

In Japanese practice, notarisation or similar formalities are not generally required for transactions involving know-how.

Under Japanese law, in principle, reverse engineering of a lawfully acquired product that is publicly available is generally understood not to be unlawful (Patent Act Article 69, Paragraph 1; Copyright Act Article 30-4). However, between contracting parties it is possible to include provisions prohibiting reverse engineering, disassembly, de-compilation, dismantling, analysis or other similar acts. Such provisions may, in principle, be valid and enforceable.

Relationship With Trade Secrets

In relation to the non-public nature requirement for trade secret protection, if the relevant information can be easily obtained through reverse engineering, the information may not satisfy the non-public nature requirement and may therefore not be protected as a trade secret.

It is understood that purchasing a commercially available product and identifying information that may constitute a trade secret, such as component specifications or assembly methods, through reverse engineering does not constitute an act of improper acquisition of a trade secret.

Individual data is not protected by copyright. However, a database may be protected by copyright if its selection or structure of constituent information is creative (Article 12, Paragraph 12).

The scraping or data extraction of copyrighted works may constitute copyright infringement. However, scraping for certain limited purposes, such as data analysis, may be considered permissible under applicable copyright exceptions (Articles 30-4 and 47-5).

Furthermore, data and databases may be protected as “trade secrets” under the UCPA, and the acquisition, use or disclosure of such data or databases through wrongful means may constitute unfair competition. In addition, the relevant parties may contractually prohibit the disclosure of such data or databases to third parties or their use for specified purposes.

Copyright

Although no judicial precedent exists on the copyrightability of AI-generated outputs, the Legal Subcommittee under the Copyright Subdivision of the Cultural Council (a governmental advisory body under the Agency for Cultural Affairs) published guidelines entitled “General Understanding on AI and Copyright” (the “AI-Copyright Guidelines”), on 15 March 2024.

While not legally binding, the AI-Copyright Guidelines serve as an important practical reference in Japan, setting out a framework for issues such as whether AI-generated outputs are copyrightable. According to the AI-Copyright Guidelines, materials autonomously generated by AI are not copyrightable. However, where a person creates a work using AI as a tool and makes a creative contribution, considering factors such as the amount of instructions or inputs, the number of generation attempts, and selection from outputs, such a work may be copyrightable. Where copyrightability is recognised, the AI user who created the output is considered as the author and holds both copyright and moral rights.

Patent

AI-related technologies may be patentable, but inventions autonomously generated by AI are not. In a case where an engineer named an AI as the inventor, the Intellectual Property High Court, in a decision dated 30 January 2025, held that an “inventor” must be a natural person, which was subsequently upheld by the Supreme Court.

The use of copyrighted works for AI training involves reproduction and may therefore constitute infringement unless it falls within a copyright exception. In this context, Article 30-4 of the Copyright Act provides that the use of works for the purpose of information analysis (including AI training) is permissible if the use:

• is not for the purpose of enjoying the thoughts or sentiments expressed in the work;
• is limited to the extent necessary for such purpose; and
• does not unreasonably prejudice the interests of the copyright holder, having regard to the nature or purpose of the work and the circumstances of its use.

In general, the use of copyrighted works for AI training is permissible under Article 30-4, unless the above requirements are not satisfied. Although no court rulings exist on Article 30-4, the AI-Copyright Guidelines suggest, for example, that AI training aimed at generating outputs that reproduce all or part of the creative expression in the training data fails the first requirement above and may therefore constitute infringement. They further indicate that, where a copyrighted database that contains data organised in a format suitable for information analysis and is made available on the internet for a fee is reproduced for AI training without compensation, such conduct may fail the third requirement and may therefore constitute infringement.

Furthermore, where trade secrets protected under the UCPA are used for AI training and such trade secrets are divulged in AI-generated outputs, this may constitute misappropriation of trade secrets in violation of the UCPA.

There is currently no law or regulation that imposes a legal obligation to disclose information regarding the data used in training datasets.

There is no specific legal mechanism addressing infringements involving generative AI, and the absence of case law makes it difficult to predict how courts will assess evidence or legal issues, such as causation in AI-related infringement cases.

In principle, the user of generative AI tool is liable for infringement. However, the AI-Copyright Guidelines indicate that liability may extend to developers or service providers of generative AI systems in certain cases. For example, where an AI tool frequently generates infringing outputs, or where a service provider is aware of a high likelihood that outputs will resemble existing copyrighted works but fails to take appropriate preventive measures, the likelihood increases that the developer or service provider will also be regarded as an infringer.

In Japan, multiple forms of intellectual property protection may apply to the same subject matter, and the choice depends on its nature and the right holder’s strategy.

• Patents are preferred for technically significant inventions requiring strong, enforceable protection, particularly where reverse engineering is possible and infringement is relatively easy to detect.
• By contrast, trade secret protection is suitable for confidential know-how that is difficult to reverse engineer, enabling protection without disclosure.
• Where value lies mainly in aesthetic appearance, design rights are more appropriate.
• Trade marks are used where a feature functions as a source identifier and renewable, long-term protection is desired.

In practice, these protections are often combined to maximise effectiveness.

In Japan, cumulative protection of the same subject matter under multiple intellectual property regimes is, in principle, permitted, provided that the requirements for protection under each regime are independently satisfied. However, there are limits arising from the purpose and requirements of each statutory regime. For example:

• technical information disclosed through a patent application becomes publicly known and therefore will not be protected as a trade secret;
• functional product configurations are generally less likely to receive trade mark-type protection; and
• industrial designs are generally less likely to be protected under copyright law, given that they may be protected as designs under the Design Act.

Where multiple rights are asserted, courts will generally assess the protectability of the subject matter, the existence of infringement, applicable defences, and the scope of remedies separately for each cause of action.

In Japan, confidential know-how or technical information may be protected as a trade secret at any stage of the patent process if it is kept secret, useful and not publicly known.

Before filing, an invention can be maintained as a trade secret unless voluntarily disclosed. During prosecution, undisclosed information may continue to be protected. However, once a patent application is published (generally 18 months after filing), any information disclosed in the specification can no longer qualify as a trade secret.

To balance protection, it is common to separate patentable elements from proprietary know-how, disclosing only what is necessary in the patent while retaining other technical information as trade secrets to preserve confidentiality.

In Japan, trade marks, trade dress and industrial designs are protected under different legal frameworks and for different policy purposes. The Trademark Act protects signs that function as indicators of source or origin, while the Design Act protects the aesthetic aspects of articles, buildings and certain images. Trade dress is primarily protected under the UCPA, particularly where product packaging or other features have become well known or famous among consumers.

Because these regimes protect different interests, the same product shape or packaging may simultaneously be protected under multiple legal frameworks. However, Japanese courts have generally taken a restrictive approach to claims under Article 2, Paragraph 1, Item 1 and Item 2 of the UCPA after the expiry of design rights. Many decisions reflect the view that distinctiveness or fame acquired through exclusivity granted by a registered design right should not continue to receive protection under the UCPA after the design right has expired.

Extremely simple logos, artistic elements and branding are generally not protected by copyright. However, where sufficient creativity exists, such logos or designs may be protected under the Copyright Act.

Trade marks may be registered regardless of whether they are protected by copyright. Article 29 of the Trademark Act provides that a trade mark holder may not use a registered trade mark to the extent that such use conflicts with another person’s copyright that arose prior to the filing date of the trade mark application. However, where the same person holds both copyright and trade mark rights in a particular logo or design, the Copyright Act does not impose any limitations on the exercise of trade mark rights, nor does the Trademark Act impose limitations on the exercise of copyright. Accordingly, such a right holder may enforce either or both rights strategically at its discretion.

In Japan, claims based on multiple intellectual property rights may generally be brought in the same proceedings where the claims are sufficiently related from both a factual and legal perspective. In practice, it is common for plaintiffs to assert multiple causes of action arising from the same conduct, such as claims based on patents, trade marks, copyright, designs and the UCPA, in a single lawsuit.

Where infringement of multiple IP rights is established, Japanese courts assess remedies separately under each legal framework, and injunctive relief may be granted under multiple rights in parallel. However, Japanese law does not permit double recovery for the same harm. Accordingly, even where the same conduct constitutes both trade secret misappropriation under the UCPA and patent infringement, for example, damages may be claimed under both theories, but overlapping damages will not be cumulatively awarded to the extent they compensate the same economic loss.

Territoriality and Jurisdiction

Under Japanese law, intellectual property rights are generally governed by the territoriality principle: rights arise under the domestic law of each country, and their effect generally extends only within that country’s territory.

In cross-border IP disputes, Japanese courts first determine whether they have international jurisdiction. Actions concerning the validity of registered intellectual property rights, such as patents, fall within the exclusive jurisdiction of the Japanese courts where the relevant registration is made in Japan (Article 3-5, Paragraph 3 of the Code of Civil Procedure). In other cases, international jurisdiction is generally determined under the ordinary framework for property-related disputes.

Governing Law for IP Infringement Claims

For IP infringement claims, Japanese law generally distinguishes between claims based on the effect of the IP right itself and tort-based damages claims.

An injunction claim is generally governed by the law of the country where the patent is registered.

Damages claims are generally treated as tort claims. Therefore, under Article 17 of Japan’s Act on General Rules for Application of Laws, the governing law for damages claims is generally the law of the place where the result of the tortious act occurred.

Assignment and Licence Agreements

For IP assignments and licences, Japanese law distinguishes between contractual issues and proprietary issues. Contractual issues such as formation, interpretation, performance, breach and termination are governed by the law applicable to the contract. By contrast, proprietary issues such as assignability, licensing requirements and perfection or enforceability against third parties are generally governed by the law of the country of registration or protection of the relevant IP right.