Companies Must Take Measures
Business secrets are a key value in the company and offer competitive advantages. With the implementation of the know-how guideline in the law against unfair competition the protection of business secrets has been taken into account since 29.1.2019. For the existence of a business secret, companies must take technical, organizational and contractual measures!
The law against unfair competition covers:
- the illegal acquisition,
- the illegal use and
- the illegal disclosure
of trade secrets and regulates specifically civil rights claims.
Information is regarded as a business secret, when
- that information is a secret, therefore not generally known or easily accessible,
- that information is of commercial value because it is secret and
- that information is subject to appropriate confidentiality measures by the owner that are appropriate to the circumstances.
Not only technical but also commercial secrets are included. Processes, prototypes, sample collections, recipes, customer and supplier lists, purchasing conditions, cooperation agreements, etc. are affected.Commonly known or easily accessible information and general experience, knowledge, skills and qualifications are not protected.
In order for a business secret to exist at all, it is essential that, among other things, appropriate confidentiality measures are taken in the company.
Therefore, it can be distinguished between
- technical (eg entrance-, admission- and access restrictions, encryption, IT security measures, password protection),
- organizational (eg documentation of business secrets, distribution of information among selected people, employee reviews) and
- contractual (confidentiality agreements, competition clauses)
Which measures are appropriate must be decided on a case-by-case basis and will depend on the type, industry, size of the company, any development costs and importance for the company.
A multitude of claims is available for the illegal acquisition, use or disclosure of business secrets: injunctive relief, disposal (destruction, recall, surrender of items), surrender publishing of the enrichment and compensation for negligence. An interim injunction can also be issued as security.
Secrecy in the court case
So far, court cases have been avoided in the case of trade secret violations due to the disclosure.
To ensure that business secrets remain secret when enforced in court proceedings, the legislature now provides various measures as to how the court can keep business secrets. This includes, among other things, orders that the disclosure only be made availabl to the expert appointed by the court, or that separate file components are created that are exempt from the right to inspect files. The obligation to maintain confidentiality continues even after the legal proceedings have been completed.