China’s Supreme People’s Court Work Report (2025) explicitly noted that the court has lawfully issued China’s first conduct preservation order in the field of intellectual property that functions as a counter-injunction, supporting right holders in the legitimate exercise of remedies.
On 21 March 2025, the Jiangsu High People’s Court released its report on the judicial protection of trade secrets and exemplary cases (2020 to 2024), advising enterprises to enhance their capacity to respond to trade secret litigation and to take prompt legal measures upon detecting infringement, including applying for evidence preservation, investigation and collection of evidence, and conduct preservation.
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Han Kun Law Offices
Tel: +86 21 6080 0200
E-mail: yan.wang@hankunlaw.com
In the nation’s first pre-litigation conduct preservation case involving alleged infringement of trade secrets in unreleased game character designs, miHoYo v Chen (2024), the Shanghai Pudong New Area People’s Court issued a ruling within 48 hours of receiving the application, prohibiting the respondent from disclosing or using the relevant content.
These developments reflect the judiciary’s increasing efforts to curb infringement through applications for conduct preservation, underscoring a trend towards rapid protection in IP cases designed to prevent the risk of “winning a case but losing the market”, and to provide enterprises with clear judicial guidance.
In accordance with relevant legal provisions, when reviewing applications for conduct preservation, the courts generally focus on five key elements: (1) the basis for the rights; (2) the likelihood of infringement; (3) whether irreparable harm will be incurred; (4) the balance of interests between applicant and respondent; and (5) the potential harm to national or public interests. This article, drawing on current laws and the latest judicial cases, analyses the factors considered by the courts when reviewing such applications and explores the critical considerations enterprises should note when applying for conduct preservation.
Rights basis
Conduct preservation requires that the applicant’s claim to the trade secret is clear and that its rights remain stable. In trade secret cases, the applicant must demonstrate that the asserted trade secret satisfies three criteria: non-public; secrecy; and value. Specifically: (1) the applicant should clearly define the trade secret’s contents and distinguish them from publicly available information; (2) submit evidence of having implemented reasonable confidentiality measures – for example, by entering into non-disclosure agreements, establishing secret-related areas and instituting physical and technical restrictions; and, (3) through a chain of evidence regarding the trade secret’s medium or formation process, prove a stable, legitimate interest in the trade secret.
Likelihood of infringement
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Han Kun Law Offices
Tel: +86 21 6080 0253
E-mail: yue.zhang@hankunlaw.com
When reviewing an application for conduct preservation, the court considers the evidence provided by the applicant to determine whether the respondent is likely to have unlawfully acquired, used or disclosed the trade secret. As a conduct preservation order is a procedural decision, the court generally only requires the applicant to show a preponderance of the evidence in support of its claim.
Therefore, the applicant should secure infringement evidence in advance – for instance, by capturing facts through surveillance, chat records or system data such as access logs and records of cloud document operations.
Determining whether irreparable harm has occurred. Chinese law explicitly enumerates situations considered to be irreparable harm, including but not limited to: (1) infringement that may cause irreversible damage to the applicant’s personal rights (such as reputation or publication rights); (2) triggering more widespread infringement that significantly increases the applicant’s losses; or (3) substantially reducing the applicant’s market share.
In miHoYo v Chen (2024), the Shanghai Pudong New Area People’s Court considered the infringement’s impact on the applicant’s market competitiveness, user base, commercial strategy and reputation, and analysed the potential irreparable harm from multiple perspectives before ultimately upholding the pre-litigation preservation application.
In practice, the standards for determining “irreparable” remain somewhat ambiguous, and the courts do not typically comment directly on the extent of damage required. Therefore, in trade secret cases, applicants should provide multifaceted evidence, taking into account the technological field and industrial characteristics of the trade secret, as well as the nature of the respondent’s actions (for example, whether infringing information was fully disclosed on public websites), to prove that the harm is indeed irreparable.
Balancing the interests of the applicant and respondent. When deciding whether to impose conduct preservation measures, the court evaluates whether the harm to the applicant from not taking such measures exceeds the harm to the respondent resulting from their imposition. Generally, the damage caused by prohibiting the respondent from disclosing or using trade secrets is relatively limited, especially when the respondent is an individual.
For example, in Bosch v Li (2024), the first pre-litigation injunction case addressing the infringement of technical secrets, the Suzhou Intermediate People’s Court upheld Bosch’s application for pre-litigation conduct preservation against a former employee who breached confidentiality obligations by sending technical secret information to a personal email account. The court ruled to prohibit the former employee from disclosing, using or permitting others to use the relevant technical secrets.
Whether national or public interests are harmed. When assessing conduct preservation measures, the court generally finds that such measures may harm national or public interests only if the case involves national security, public health, environmental protection or other significant public interests.
In practice, the applicant may assert that the measures do not affect the public interest by demonstrating, for instance, that: (1) the product involved does not have the attributes of a public good; (2) the product provider is a fully market-operated entity; and (3) the rights at issue in a trade secrets case are primarily private, not public.
To increase the likelihood of success for a conduct preservation application, the rights holder must not only fully prove the relevant legal requirements but also strictly adhere to procedural mandates. These include submitting the legally required guarantee, clearly specifying the requests and actively responding to any hearing arranged by the court. In addition, upon discovering an infringement, the rights holder should promptly consult external counsel and take swift legal action to minimise potential losses.
Wang Yan is a partner at Han Kun Law Offices. He can be contacted by phone at +86 21 6080 0200 or by e-mail at yan.wang@hankunlaw.com
Zhang Yue is an associate at Han Kun Law Offices. She can be contacted by phone at +86 216 080 0253 and by email at yue.zhang@hankunlaw.com
