Last updated: 
2 December 2019

A trade secret can be any confidential information of value. Unlike other IP rights, trade secrets are protected by keeping them a secret, and are not registered with IP offices. The protection of a trade secret will cease if the information is made public, and trade secrets do not prevent other people from independently inventing and commercialising the same product or process.

Ideally, you will identify any trade secrets you hold and take measures to protect them, including by limiting physical and electronic access to the confidential information, and putting in place confidentiality agreements with employees, contractors and commercial partners. Departing employees are the most common source of trade secret leakage. Breach of trade secrets can be enforced in the courts, but is often more difficult to establish than infringement of registered IP rights.

China’s Anti-Unfair Competition Law protects commercial secrets (trade secrets), defined as commercial information that is not known to the public, has commercial value, and for which the owner has taken measures to ensure its confidentiality.

In April 2019, China amended the Anti-Unfair Competition Law to provide a shift in the burden of proof to the alleged infringer in trade secret infringement civil cases. If a commercial secret holder provides preliminary evidence that reasonably demonstrates its commercial secret has been infringed, the burden then shifts to the alleged infringer to prove it has not infringed the commercial secret.