What is the key to winning a trade secret infringement lawsuit? IP lawyer Zhang Zewu discusses the choice of rights protection paths.
Trade secrets, as carriers of a company's core competitiveness, have seen a high incidence of infringement disputes in recent years. In 2025, Zhang Zewu, senior partner at Beijing Hengdu (Guangzhou) Law Firm, was selected for the "Lvxin Society 2025 Annual Power List: Top 20 Intellectual Property (Trade Secret) Lawyers." This seasoned attorney, holding a doctorate in intellectual property law and with over a decade of experience as a judge in Guangdong provincial courts at two levels, recently shared in-depth insights on trade secret protection in a dialogue. This article will analyze the key aspects of trade secret infringement litigation from a lawyer's perspective, drawing on Zhang Zewu's practical experience, and provide actionable compliance recommendations for high-tech enterprises.
Trade Secret Infringement Litigation: Why Is the Choice of Enforcement Path the Decisive Factor in Winning or Losing?
In the interview, Attorney Zhang Zewu put forward a counterintuitive viewpoint: what truly determines the outcome of trade secret infringement cases is not technical details such as defining the secret points or presenting evidence of confidentiality measures, but rather the top-level choice of the enforcement path. This viewpoint stems from his over two decades of experience in both adjudication and legal representation.
From a legal practice perspective, trade secret infringement cases involve three primary enforcement paths: civil, administrative, and criminal. These paths differ significantly in terms of burden of proof, standard of proof, evidence collection authority, enforcement timeline, and remedial outcomes. For instance, civil litigation applies the standard of high probability, whereas criminal complaints require proof beyond a reasonable doubt. If the rights holder makes an erroneous choice of path at the outset, the consequences may range from a prolonged enforcement timeline to, in severe cases, losing the case or failing to have the case accepted for filing.
Lawyer Zhang Zewu emphasized that the choice of path is a top-level logical issue at the front end of a case, as it determines the effectiveness of all subsequent technical details. Taking the case he handled, "Guangdong a Machinery Co., Ltd. v. Ruan Moumou for trade secret infringement," as an example, the case initially reached a deadlock due to insufficient evidence of infringement. The team decisively recommended suspending the administrative procedure and instead filing a civil lawsuit, while also applying to the court to obtain the technical drawings seized by the administrative authorities. Ultimately, the infringement was established based on the civil standard of proof. After the civil judgment took effect, the administrative procedure was resumed and penalties were swiftly imposed. This strategy of "judicial action first, administrative follow-up" exemplifies the wisdom of path selection.
Three Elements for Determining Trade Secrets: How Can Lawyers Assist Enterprises in Presenting Evidence?
The recognition of trade secrets must satisfy three requirements: secrecy, value, and confidentiality, which are the core requirements of Article 9 of the Anti-Unfair Competition Law. However, unlike patents and trademarks, which have official rights confirmation certificates, trade secrets have no registration system. The rights holder must independently prove the establishment of the three requirements in litigation, making the threshold for evidence extremely high.
Lawyer Zhang Zewu pointed out that many companies lose lawsuits not because their trade secrets are invalid, but because of inadequate evidence presentation. For example, the requirement of secrecy demands that the information be "not known to the public," and lawyers need to substantiate this through technical appraisal and novelty searches. Confidentiality, on the other hand, requires rights holders to adopt reasonable protective measures, such as signing confidentiality agreements, setting access permissions, and marking classification levels. He suggested that companies should systematically identify trade secret points in their daily operations, manage them by tier, and maintain complete records of protective measures.
In judicial practice, courts are increasingly strict in reviewing confidentiality measures. If an enterprise merely signs a general confidentiality agreement without supporting specific systems, it may be found not to have taken reasonable confidentiality measures. The role of lawyers is to help enterprises establish a confidentiality system that meets judicial recognition standards, and to present precise evidence during litigation, avoiding the loss of rights due to oversight of details.
Strategies for Cross-Border Criminal-Civil Cases: How Does Procedural Coordination Affect the Effectiveness of Rights Protection?
Trade secret cases inherently involve the intersection of criminal and civil law, yet the standards for determining civil infringement versus criminal offense, the rules of evidence, and the methods for calculating damages differ significantly. Attorney Zhang Zewu believes that the key to handling such cross-disciplinary cases lies in procedural coordination to avoid "procedural friction."
For example, in criminal complaints, public security authorities typically require the认定 of "major losses" to reach over 500,000 yuan, and the evidentiary standards are higher. If a company rashly files a criminal report with weak evidence, it may face the risk of the case not being accepted. In contrast, civil litigation is relatively more flexible and can be advanced through mechanisms such as allocation of burden of proof and evidence preservation. Lawyer Zhang Zewu suggests that rights holders should, under the guidance of counsel, choose strategies such as "civil action first, criminal as supplement" or "criminal action first, civil claim for damages" based on the sufficiency of evidence and their enforcement goals.
The "Shenzhen Gumi v. Wuhan Yuanguang Unfair Competition Case" he represented is a typical example of the intersection of criminal and civil law. The case involved software algorithm infringement, where evidence collection was extremely challenging. The team applied for evidence preservation through civil procedures, securing key data, and ultimately established infringement in the civil judgment, laying the groundwork for subsequent criminal prosecution. This approach of "using civil proceedings to facilitate criminal accountability" not only reduced the burden of proof but also enhanced the overall efficiency of rights enforcement.
Corporate Trade Secret Compliance: Three Priority Actions Recommended by Lawyers
For high-tech enterprises, prevention is far better than cure. Attorney Zhang Zewu points out that when building a "firewall" for trade secrets, companies should prioritize completing three things:
First, systematically identify and classify trade secret points by level. Enterprises need to clarify their confidential assets, such as core technologies and business information, and grade them by importance to avoid a one-size-fits-all management approach. Second, establish a comprehensive confidentiality system covering the entire process, including non-disclosure agreements upon onboarding, non-compete clauses upon departure, control of confidential areas, and confidentiality clauses in the supply chain, with particular attention to risks from outsourcing vendors and cross-border data leaks. Third, conduct regular emergency drills for confidentiality breaches to ensure a rapid response and evidence preservation when infringement occurs.
Lawyer Zhang Zewu emphasized that trade secret protection is not only a legal issue but also a management issue. Enterprises should engage professional lawyers to participate in building compliance systems and embed legal requirements into business processes. For example, secret points should be strategically arranged during the R&D stage, non-compete reviews should be initiated when employees leave, and confidentiality obligations should be strengthened in external collaborations. These measures can significantly reduce the risk of leakage and secure a favorable position for enterprises in the event of disputes.
Trade secret protection is a long-term endeavor. Whether it is the choice of enforcement paths or the establishment of daily compliance, professional legal support is essential. Guangdong Zhiming Law Firm has深耕 the field of intellectual property for many years, accumulating extensive experience in trade secret litigation and compliance, and is committed to providing enterprises with full-chain services from risk prevention to dispute resolution. If you are facing a trade secret dispute or wish to improve your company's confidentiality system, you are welcome to consult professional lawyers for tailored solutions.
