December 2023
Teresa Huang
Mainland China does not have a law dedicated to the protection of “trade secrets.” Instead, a diverse set of laws is applied, mainly including the Anti-Unfair Competition Law, the Civil Code, the Criminal Law, the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Civil Cases Involving the Infringement of Trade Secrets, and the Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases Involving the Infringement of Intellectual Property Rights.
According to the legal definitions in Mainland China, the determination of whether business information constitutes “trade secrets” requires an examination of the three elements: “secrecy,” ” value,” and “confidentiality.” Courts will make case-by-case determination based on specific circumstances. Legal liabilities for violating “trade secret” protection regulations include criminal, civil, and administrative liabilities. Moreover, when meeting specific statutory requirements, the court may take preservation measures against the alleged infringer.
In recent years, as the Chinese government has prioritized strengthening the protection of trade secrets as a crucial mission to enhance the fight against unfair competition and strengthen the protection of intellectual property rights, various local governments have successively issued normative guidelines. Therefore, when implementing measures for the protection of trade secrets in Mainland China, it is advisable to stay informed about relevant judicial interpretations, guiding or landmark cases, which can help understand the court’s approach to handle specific situations and stay updated on the latest practical guidance from prosecuting authorities. Additionally, prevention is definitely far better than claims and remedies after the fact. It is recommended that enterprises review whether their internal talent management systems have adopted comprehensive measures to protect their trade secrets, so as to protect their own trade secrets while avoiding unintentional infringement of others’ trade secrets.
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