Protection of Trade Secrets and Trade Wars – Comments on the New Judicial Interpretation on the Protection of Trade Secrets

Abstract

In order to implement the commitments made in the “Phase One Trade Agreement” between China and the USA, the Supreme People’s Court adopted a judicial interpretation on trade secrets that went into effect on 12 November 2019. This article describes the implications that the judicial interpretation has for the protection of trade secrets in China. First, it discusses the definition of the term “trade secrets” in Article 9 (4) Anti-Unfair Competition Law with reference to the provisions in the judicial interpretation. In a second step, it explores the prohibited infringement acts in relation to trade secrets, such as illegal acquisition, disclosure, use, and allowing use. Furthermore, the article addresses the civil claims that can be brought by the owner of a trade secret against the infringer as well as the enforcement options and the conditions to be fulfilled in terms of the burden of proof. Finally, the article covers the specific issue of customer lists, particularly with regards to the question of whether they constitute trade secrets and whether their use can be prohibited.