The Beijing Intellectual Property Court has published a guide for the protection of trade secrets. This also deals with the possibilities of claiming damages in the event of trade secret infringements. However, protecting trade secrets in court requires a clear statement of the infringement and the resulting damages. Companies should ensure that they have all the evidence necessary to effectively assert their rights in court.
Once a breach is discovered, the infringement should be stopped as soon as possible. This is because civil liability lasts until the secret becomes public knowledge. If the plaintiff has suffered damage, he or she can apply to the court for damages. If it is difficult to quantify the exact damages, the plaintiff can either prove that the defendant made profits from the infringement or use a royalty for the use of the trade secret as the basis for the calculation. In addition, there is the possibility of an expert opinion by an expert body. If the plaintiff can prove that the defendant intentionally violated the trade secret and that this had serious consequences, he or she can apply for increased damages – up to a maximum of five times the amount previously determined.
Those who wish to obtain higher punitive damages must prove that the defendant intended to intentionally violate the trade secret. To do so, he or she can present evidence that indicates: the ongoing infringement despite prior warnings, existing business relationships with the plaintiff or interested parties, or the potential threat to national security, the public interest, or personal health. The latter three pieces of evidence gain importance with China’s new Counter-Espionage Law.
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China Intellectual Property Blog 