Do Chinese courts grant preliminary injunctions for trade secret disputes?

Yes, Chinese courts do grant preliminary injunctions (行为保全, xíngwéi bǎoquán) in trade secret disputes. Since the 2019 amendments to the Anti-Unfair Competition Law (AUCL) and the issuance of the Supreme People’s Court’s judicial interpretations on行为保全, preliminary injunctions have become an increasingly important and viable tool for foreign companies seeking to stop ongoing trade secret misappropriation before a full trial can take place. This FAQ provides a comprehensive guide to the legal framework, application process, standards for granting injunctions, and strategic considerations for foreign companies.

Legal Framework

Preliminary injunctions in trade secret cases are governed by several legal instruments:

• Article 100 of the Civil Procedure Law — Grants courts the authority to issue preservation orders before or during litigation
• Supreme People’s Court Provisions on Several Issues Concerning the Application of行为保全 in IP Cases (2018) — Specifically addresses injunctions in IP and trade secret cases
• Article 21 of the AUCL (2019 Amendment) — Confirms the availability of preliminary injunctions for trade secret infringement
• General rules on evidence preservation (证据保全, zhèngjù bǎoquán) — Related but distinct from行为保全; preserves evidence rather than stopping conduct

Preliminary injunctions are conceptually distinct from evidence preservation orders. A行为保全 order prohibits or requires a party to take certain actions before judgment, while证据保全 secures evidence that might otherwise be destroyed.

Types of Preliminary Injunctions Available

Pre-Litigation Injunction (诉前行为保全)

Filed before the main lawsuit is initiated. The applicant must file the main lawsuit within 30 days of the injunction being granted, or the injunction will be automatically lifted.

Interim Injunction (诉中行为保全)

Filed after the main lawsuit has been initiated but before judgment. These are more common because the court already has context from the case.

Standards for Granting a Preliminary Injunction

Chinese courts apply a multi-factor test when considering whether to grant a preliminary injunction in a trade secret case:

1. Likelihood of Success on the Merits

The applicant must demonstrate that they are likely to succeed in the main action. This requires showing:

• A prima facie case that the information qualifies as a trade secret under the AUCL’s three-part test (secrecy, value, reasonable protection measures)
• Preliminary evidence that the defendant misappropriated the trade secret
• There is no obvious defense that would defeat the claim

Chinese courts do not require the applicant to prove their case to the same standard as at trial — the threshold is lower — but the evidence must be sufficient to convince the judge that success is reasonably likely.

2. Irreparable Harm

The applicant must show that without an injunction, they will suffer irreparable harm (难以弥补的损害) that cannot be adequately compensated by monetary damages alone. Circumstances that constitute irreparable harm include:

• Public disclosure of the trade secret — Once a secret is made public, it loses its trade secret status permanently and damages cannot undo the loss
• Loss of market position — The defendant’s use of the secret to gain market share that the plaintiff cannot realistically recover
• Loss of business relationships — Customer relationships and goodwill that cannot be restored
• Rapidly expanding harm — The defendant is actively disseminating the trade secret to others
• Destruction of the business — The misappropriation threatens the viability of the applicant’s business

3. Balance of Convenience (利益权衡)

The court must weigh the harm to the applicant if the injunction is not granted against the harm to the defendant if the injunction is granted. Factors include:

• The potential impact on the defendant’s business operations
• Whether the defendant would suffer disproportionate harm from being restrained
• The public interest in protecting IP rights versus the public interest in the defendant’s continued operations
• The relative financial resources of the parties

4. Urgency (紧急性)

The applicant must demonstrate urgency — that immediate action is necessary to prevent the threatened harm. A delay in filing the application may be interpreted as evidence that the harm is not truly urgent.

The Application Process

Step 1: Prepare the Application

The application must include:

• Detailed statement of the trade secret and how it qualifies for protection
• Preliminary evidence of misappropriation
• Explanation of the irreparable harm that would result without an injunction
• Proposed scope of the injunction — what specific conduct should be restrained
• Security bond amount (see Step 2)

Step 2: Provide Security (担保)

The applicant must provide security (担保, dānbǎo) to cover potential damages to the defendant if the injunction is ultimately found to be wrongful. The amount is determined by the court based on:

• The potential losses the defendant could suffer from being restrained
• The value of the trade secret
• The financial circumstances of the parties

Security can be provided in the form of a bank guarantee, cash deposit, or property pledge. The amount is typically between RMB 100,000 and RMB 1,000,000, but can be higher in substantial cases.

Step 3: Court Review and Ruling

In urgent cases, the court must rule on the application within 48 hours. Applications that are less urgent are typically reviewed within 5-10 days. Chinese courts may grant the injunction without hearing the defendant (ex parte) in cases where prior notice would defeat the purpose of the injunction — for example, if the defendant would destroy evidence or transfer assets upon being notified.

Step 4: Implementation

If granted, the injunction is enforceable immediately. Violation of a preliminary injunction can result in:

• Contempt of court sanctions
• Fines
• Detention of responsible persons
• Adverse inferences in the main case

Success Rates and Trends

Chinese courts have become increasingly receptive to preliminary injunctions in trade secret cases, particularly since 2019. Key trends include:

• Higher grant rates — Specialized IP courts in Beijing, Shanghai, and Shenzhen grant preliminary injunctions at significantly higher rates (estimated 60-75%) than general courts
• Faster processing — Courts are increasingly complying with the 48-hour deadline for urgent cases
• Ex parte orders — Courts are more willing to issue injunctions without prior notice to the defendant where the applicant demonstrates a genuine risk of destruction of evidence
• Broader scope — Modern injunctions may include orders requiring the defendant to return or delete confidential information, cease using specific equipment or software, and refrain from contacting certain customers
• Cross-border elements — Chinese courts have shown willingness to issue injunctions that affect activities occurring partly outside China if the infringing acts have consequences within China

Practical Considerations for Foreign Companies

1. Act quickly. Speed is essential. The 48-hour urgent procedure is only available when the applicant demonstrates genuine urgency. Any delay in filing weakens the case for urgency.
2. Prepare evidence of irreparable harm. This is often the most contested element. Clearly articulate why monetary damages alone are insufficient. For trade secrets, the “cat out of the bag” argument — that once disclosed, the secret cannot be un-disclosed — is the strongest argument.
3. Have your security ready. Prepare a bank guarantee or arrange liquidity before filing. Delays in providing security can cause the application to be rejected or delayed.
4. Consider the risk to the defendant. The balance of convenience requires careful analysis. If the injunction would shut down the defendant’s entire business, the court may be reluctant to grant it unless the harm to the applicant is equally severe.
5. File in the right court. Specialized IP courts (Beijing, Shanghai, Guangzhou, Shenzhen) have more experience with preliminary injunctions and higher grant rates. If the defendant is in one of these jurisdictions, strongly consider filing there.
6. Be specific about the scope. Overly broad injunctions are more likely to be rejected or narrowed. Define the prohibited conduct precisely — what specific information the defendant cannot use, what specific actions they must take (e.g., return files, delete data), and the duration of the injunction.
7. Prepare the main lawsuit simultaneously. If you file a pre-litigation injunction, you must file the main lawsuit within 30 days. Prepare the complaint and evidence package in parallel so you are ready to proceed.

Common Reasons for Denial

Preliminary injunction applications are most commonly denied when:

• Insufficient evidence of the trade secret — The applicant fails to clearly identify the specific trade secret and provide evidence that it meets the AUCL’s three-part test
• Inadequate protection measures — The applicant’s confidentiality measures were insufficient at the time of the alleged misappropriation
• Lack of irreparable harm — The court finds that monetary damages would be adequate compensation
• Balance weighs against the injunction — The harm to the defendant would exceed the harm to the applicant
• Delay in application — The applicant waited weeks or months before seeking the injunction, undermining the claim of urgency
• Insufficient security — The offered security is too low relative to the defendant’s potential losses

Comparison with Evidence Preservation (证据保全)

Foreign companies should understand the distinction and possible synergy between preliminary injunctions and evidence preservation:

In practice, applicants often file both applications simultaneously — an evidence preservation order to secure proof of infringement, and a preliminary injunction to stop the ongoing misappropriation.

Conclusion

Chinese courts do grant preliminary injunctions in trade secret disputes, and they are an increasingly powerful tool for foreign companies. The 48-hour urgent procedure, the availability of ex parte orders, and the growing willingness of specialized IP courts to grant broad injunctive relief make行为保全 a viable option for stopping ongoing misappropriation before it causes irreparable harm. However, success requires acting quickly, presenting clear evidence of the trade secret and the irreparable harm it faces, providing adequate security, and filing in a court with experience in trade secret injunctions. Foreign companies that understand and leverage this tool can effectively protect their trade secrets while the main case proceeds through the Chinese court system.

Last updated: July 2026. This article provides general guidance and does not constitute legal advice. Foreign businesses should consult with qualified Chinese legal counsel for case-specific recommendations.

Official Sources

• China National Intellectual Property Administration: Trademark Law
• China National Intellectual Property Administration: official service portal
• World Intellectual Property Organization: China legal and treaty resources