CHINA Law and Practice Contributed by: Chuanhong Long, Ji Liu and Xiao Jin, CCPIT Patent and Trademark Law Office
1. Legal Framework 1.1 Sources of Legal Protection for Trade Secrets Unlike for patents, trade marks and copyrights, there is no separate Trade Secret Law in China, but instead, a trade secret protection system based on the Anti-Unfair Competition Law, sup - plemented by the Civil Code (which combines the former General Principles of the Civil Law and the Contract Law), the Law on Promoting the Transformation of Scientific and Technologi - cal Achievements, the Labour Contract Law, the Company Law, the Civil Procedure Law and the Criminal Law. In the Civil Code passed in May 2020, trade secrets are, for the first time, explic - itly classified as a type of intellectual property right. The types of infringement acts of trade secrets are stipulated in Article 9 of the Anti- Unfair Competition Law. According to this provi - sion, they are: • obtaining a right-holder’s trade secrets by theft, bribery, intimidation, electronic intrusion or other improper means; • disclosing, using or allowing others to use a right-holder’s trade secrets obtained by the means mentioned in the preceding para - graph; • disclosing, using or allowing others to use a right-holder’s trade secrets in violation of confidentiality obligations or the right-holder’s requirements on keeping such trade secrets confidential; and • obtaining, disclosing, using or allowing any other party to use a right-holder’s trade secrets by instigating, tempting or helping any other party to violate the confidentiality obligations or the right-holder’s requirements on keeping such trade secrets confidential.
According to Article 219 of the Criminal Law, the acts in the first three paragraphs above are subject to criminal punishment when the circum - stances are serious. 1.2 What Is Protectable as a Trade Secret According to Article 9 of the Anti-Unfair Com - petition Law, commercial information such as technical and business information that is not known to the public has commercial value and is kept confidential by the right-holder is classified as trade secrets and protected. 1.3 Examples of Trade Secrets According to the relevant judicial interpretation of the Supreme Court: • structures, raw materials, components, formulas, materials, samples, styles, propa - gation materials of new plant varieties, processes, methods or steps, algorithms, data, computer programs, and related docu - ments related to technology can constitute the technical information referred to in the fourth paragraph of Article 9 of the Anti-Unfair Competition Law; • creative, management, sales and finance information, plans, samples, bidding materi - als, customer information, data and other information related to business activities can constitute the business information referred to in paragraph 4 of Article 9 of the Anti-Unfair Competition Law; and • the customer information referred to in the preceding paragraph includes the customer’s name, address, contact information, trans - action habits, intentions, content and other information.
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