Enforcing Trade Secrets Across Borders: A Comparative Look At The UK, EU, US, Australia And China

Trade secrets are increasingly recognised as vital assets in the intellectual property portfolios of modern businesses. Unlike patents or trade marks, trade secrets derive their value from secrecy and for this reason do not need to be and indeed cannot be registered in a formal sense. However, this flexibility also makes them vulnerable. While companies often invest heavily in internal safeguards, such as NDAs, access controls, and employee training, these measures are only part of the equation. Enforcement is the critical next step. Without the ability to pursue legal remedies when misappropriation occurs, even the most robust internal protections can be rendered ineffective.This article of our Hidden valueseries compares enforcement mechanisms in Australia, China, the EU, the UK, and the US, highlighting similarities, differences, and practical strategies for cross-border co-ordination.

Australia

Connection to the jurisdiction

An action for enforcement of trade secrets can be brought at common law for breach of contract or in equity for breach of confidence, where there is a sufficient connection with the jurisdiction:

• Contractual claim:If the contract states that Australian law applies, or if Australia has the closest connection to the subject matter of the contract, based on factors such as where the parties are based, where the contract was signed, or where obligations were performed.
• Equitable claim:Depending on the circumstances of the case, jurisdiction may be established if the relevant conduct occurred in Australia. If the respondent is within or properly subject to the jurisdiction of a court in an Australian state, the equitable principles of that state usually apply regardless of where the conduct occurred (subject to some exceptions, which may require a stronger link).

Gathering Evidence

Mechanisms include obtaining court orders for:

• preliminary discovery to obtain further information before commencing an action;
• search orders ('Anton Pillar') allowing entry into premises to seize, inspect and preserve documents from destruction. Applications for these orders are often made urgently on an ex parte basis against companies as well as individuals; and
• discovery and interrogatories once court proceedings are on foot.

Emergency Relief

The primary forms of emergency relief are an urgent interlocutory (or preliminary) injunction and, as described above, a search (Anton Pillar) order.

An urgent interlocutory injunction can be a powerful and effective remedy, as it temporarily restrains another party from using or disclosing information that is claimed to be confidential, pending a final determination of the claims. An interlocutory injunction is an equitable remedy and subject to the Court's discretion. In assessing whether to grant an interlocutory injunction, the Court is required to consider whether the applicant has established a prima facie case and whether the balance of convenience, in all the circumstances, favours the granting of an injunction.

The applicant for an interlocutory injunction must give an undertaking as to damages which is an undertaking to the Court to provide compensation to the other party if the injunction is ultimately found to have been wrongly granted.

Preserving confidentiality of material during proceedings

Where a claim is made for unauthorised use or disclosure of confidential information, it is necessary to identify, with some specificity, the information that is claimed to be confidential as part of any proceedings. However, there are some mechanisms available that can assist to protect this information during the proceeding, including:

• Agreeing on a confidentiality regime, which restricts access to the confidential material to the lawyers working on the case and limits how that information is shared within the client's organisation.
• Asking the court for confidentiality orders in relation to material filed in the proceeding.
• Requesting closed court sessions for confidential evidence or submissions.

While the Court has discretion whether to grant a request for confidentiality orders or closed court sessions, a relevant factor is the need to avoid losing confidentiality in the subject matter of the proceeding and the proper administration of justice.

In addition, evidence filed or documents produced in proceedings are subject to an implied undertaking that they will only be used for the purpose of the proceedings in which they were disclosed (subject to limited exceptions).

Final Relief

Possible remedies include injunctions, damages, compensation or an account of profits, and other relief such as return or destruction of documents containing the confidential information.

Courts may also impose "springboard" injunctions or compensation where the misuse gave the defendant a competitive advantage.

China

Connection to the jurisdiction

Chinese courts have jurisdiction over trade secret cases where the infringement occurs within China or has a direct impact on entities located in China. In general, the infringer's domicile or the place where the infringement occurred (including the place of the act or the resulting harm) is sufficient to establish jurisdiction. These rules are primarily set out in the Civil Procedure Law of China and relevant judicial interpretations.

Gathering Evidence

Evidence collection in trade secret cases in China is largely the responsibility of the parties, as there is no formal pre-action disclosure or discovery procedure similar to common law systems. However, if evidence is at risk of being lost or difficult to obtain later, a party may apply to the court for evidence preservation during the proceedings, and the court may also take preservation measures on its own initiative. It is common for plaintiffs to initiate proceedings without having all evidence in hand, supplementing evidence during litigation or requesting the court's assistance in obtaining or preserving evidence.

Emergency Relief

Chinese courts allow interim measures such as preliminary injunctions to prevent ongoing or imminent infringement. Such injunctions can stop products based on misappropriated trade secrets from being launched or prevent confidential information from being disclosed. In urgent situations where evidence may be lost or hard to obtain later, an interested party may apply for evidence preservation, either with the court where the evidence is located, the respondent's domicile, or the court with jurisdiction over the case.

Preserving confidentiality of material during proceedings

Chinese courts take the protection of trade secrets during litigation seriously. Upon a party's request, hearings may be conducted in private to avoid public disclosure of trade secrets, and confidential materials can be submitted as protected evidence. Access to such evidence is typically restricted to the party's legal representatives rather than the party itself. If a party or a third party applies in writing for confidentiality measures regarding evidence or materials involving trade secrets, the court will adopt necessary measures during activities such as preservation, evidence exchange, cross-examination, authentication, inquiries, and hearings to ensure that trade secrets are not further disclosed.

Final Relief

The typical final relief available includes:

• permanent injunctions to prevent further use or disclosure of trade secrets;
• compensation for losses or disgorgement of the infringer's profits;
• destruction of materials containing trade secrets; and
• reimbursement of reasonable enforcement costs, including legal fees.

European Union

The EU Trade Secrets Directive (Directive (EU) 2016/943) harmonises rules across Member States to protect businesses against the unlawful acquisition, use, or disclosure of confidential know-how.

Connection to the jurisdiction

Trade secret holders can initiate legal action in an EU Member State if the defendant is domiciled or, in the case of legal entities, has its registered office or principal place of business there or if the misappropriation of trade secrets or resulting damage occurred in that jurisdiction.

Gathering evidence

EU national courts can order measures to secure evidence before or during proceedings. Such measures include:

• Disclosure Orders: Courts may order the alleged infringer to disclose relevant documents to prove misappropriation of trade secrets, provided the claimant identify the documents to be disclosed, explain why they are necessary to prove infringement, and the request doesn't cause serious prejudice to the alleged infringer.
• Measures for Preserving Evidence: Courts can order provisional measures (even ex parte) to secure proof of the infringement before initiating main action proceedings, such as seizure of suspected infringing goods. Courts may also require the applicant to lodge security deposits and order compensation if no infringement is found.

Emergency relief

• The Trade Secrets Directiveallows for swift action to prevent or limit unlawful use or disclosure. The Courts can grant preliminary injunctionson use, production, or marketing of infringing goods to prevent imminent or further use or disclosure of trade secrets.
• Seizure of goods suspected of containing misappropriated trade secrets.

Alternatively, courts may allow the continuation of the alleged unlawful use of a trade secret subject to the lodging of guarantees intended to ensure compensation for the trade secret holder. However, disclosure of the trade secret in exchange for guarantees is not permitted.

Preserving confidentiality during proceedings

Article 9 of the Directive obliges courts to adopt measures to protect the confidentiality of trade secrets throughout litigation. To avoid exposing sensitive information during litigation, courts may create confidentiality clubs limiting access to sensitive materials and hold closed hearings and issue redacted decisions to protect trade secrets.

Final relief

If infringement is proven, courts can order:

• Permanent injunctions on use, production, or marketing of infringing goods.
• Corrective measures including the destruction or withdrawal of infringing goods from the market.
• Compensation for damages based on lost profits, infringer's profits or fair royalties.
• Publication of decisions, provided confidentiality is maintained.

In some cases, monetary compensation may replace injunctive relief, especially if the infringer acted in good faith and harsher measures would be disproportionate.

United Kingdom

The means to enforce trade secrets in the UK is found in a combination of caselaw, and statutory Regulations, as well as the Court Civil Procedure Rules.

Connection to the Jurisdiction

To enforce trade secrets in the UK, the party bringing the claim needs to establish a link with the UK. Usual links include: parties being based in the UK, the misappropriation of trade secrets taking place in the UK, or parties having contractually agreed to the UK as the jurisdiction. UK caselaw also provides (through the UK adopted version of EU Rome II Regulation) for jurisdiction for non-contract claims where there is a conflict of law, such that it is possible to bring a claim in the UK where the damage from the misappropriation is suffered in the UK.

Gathering evidence

Often, even if it is possible to identify the point at which the trade secrets were copied or exfiltrated from a business, their destination or use is difficult to establish. In the UK, parties are generally required to follow a "pre-action protocol" before issuing proceedings and outline their respective claim and defence in correspondence including providing relevant documents they rely upon. However, that is obviously not appropriate where dealing with confidential information, especially where the parties are competitors. There can be a reluctance to engage in any specificity as to the details of the information in dispute. However, being put on notice of likely proceedings triggers a requirement on the defendant to take steps to preserve evidence under the court rules, where non-compliance has some sanctions, and will generally put the other party on notice such that they are likely to investigate internally.Once evidence is preserved, if proceedings are issues, the court procedure on disclosure will require the defendant to produce relevant documents.

The UK court rules do also offer a route to obtain the provision of documents pre-action on application to the court with appropriate evidence.

Emergency Relief

The UK court rules provide for parties to make an application for interim or emergency relief to obtain an injunctive order from the court requiring the provision of evidence from the defendant, and other prohibitive orders prior to a hearing of the matter in full by the court.

An interim injunction application can be made without notice to the other party where there is a real risk that evidence of the infringement may be destroyed or lost. Making such an application requires the applicant to meet a high burden of full and frank disclosure to the court, and to give a cross undertaking in damages if it turns out that the injunction was wrongly granted and caused harm to the defendant. It is also possible to make an application for an interim injunction having given notice to the defendant. This can be useful to encourage the defendant to offer undertakings not to use the material, instead of being injuncted by the court whilst the dispute plays out.

Preserving confidentiality of material during proceedings

Where proceedings are issued, the court rules provide for confidentiality over the materials in question to be preserved whilst still enforcing the rights. This can be achieved by agreeing a "confidentiality club" which limits the individuals who have access to the confidential material, sufficient only to give instructions on conduct of the dispute, as well as the use of independent experts for comparison exercises. Materials can also be redacted/blanked out, especially for court filings. Where there are court hearings, these can be held in private so as not to destroy confidence in any materials being discussed.

Final Relief

The aim of trade secrets litigation is to stop the unauthorised use of the trade secret by the third party and secure the return or destruction of any materials containing the confidential material in the opponents' hands. The court will grant a final injunction to that effect. However, where this has been rendered useless because the information has become public and cannot regain secrecy, courts will often award damages in lieu.

United States

Trade secrets in the United States are protected under the federal Defend Trade Secrets Act (DTSA) and parallel state regimes, most of which adopt the Uniform Trade Secrets Act (UTSA). Both frameworks require that the information derives independent economic value from its secrecy and be secured with reasonable protective measures.

Selecting Jurisdiction and Venue

Claims may be filed in federal court under the DTSA or where another federal basis exists. State courts hear UTSA and common-law claims. Jurisdiction and venue follow standard civil principles and typically lie where the defendant resides, conducts business, or where the alleged misappropriation or resulting harm occurred.

Gathering Evidence

Discovery proceeds under the Federal Rules of Civil Procedure or state equivalents, using document requests, interrogatories, depositions, and subpoenas. There is no general pre-action disclosure, but courts may issue preservation orders or allow limited expedited discovery for good cause. Plaintiffs often file suit before gaining full access to evidence, relying on discovery to obtain materials held by defendants, former employees, or third parties.

Emergency Relief

Courts routinely grant temporary restraining orders (TROs) and preliminary injunctions to prevent imminent use or disclosure of trade secrets and to preserve evidence. The DTSA also provides a narrow ex parte seizure remedy to prevent dissemination where ordinary relief would be inadequate, though courts apply it sparingly.

Preserving Confidentiality of material during proceedings

Courts protect sensitive information through protective orders that restrict access to outside counsel and designated experts.Sealed or redacted filings and in-camera hearings are used when necessary. DTSA § 1835 mandates that courts preserve secrecy.

Final Relief

There has been a surge in trade secret cases filed in the US courts in recent years with some high value damages awarded, particularly in jury trials. For litigation teams, this trend signals the strategic benefit of jury trials as a high-impact route to major recoveries in trade secret cases. In addition to damages awards for actual loss and unjust enrichment, available remedies include permanent injunctions and reasonable royalties. The DTSA and many state laws authorise exemplary damages and attorneys' fees for willful or malicious misappropriation. Courts may order the return or destruction of misappropriated materials. In addition to civil enforcement, the DTSA offers criminal remedies and the U.S. Department of Justice has been prosecuting criminal trade secret theft under the Economic Espionage Act, underscoring the growing emphasis on deterrence and high-impact recoveries.