Protection of trade secrets

The new Trade Secrets Act is relevant for almost every company. It regulates the handling of sensitive company information. This can include any information, e.g. information about technical know-how or customer lists. This must be secret and have commercial value. There must also be a legitimate interest in keeping it secret. If such secrets are published or used without authorization, the company can take action against the person who did it. However, a company must take measures to maintain confidentiality in advance in order to then be able to take action against an infringer. We help you to take proactive action before the damage is done.

There are three different ways in which someone else’s trade secret can be violated. Firstly, the unauthorized acquisition of the trade secret is punishable. Secondly, the unauthorized use or publication of the trade secret is prohibited. And finally, a violation can also occur if the trade secret is obtained from someone who is not the owner of the secret and who in turn obtained or used it without authorization. In the latter case, however, a violation only occurs if one knew about the other person’s violation or at least could have suspected it. Here, it naturally depends on the circumstances of the individual case.

Yes, the new regulation allows you to use reverse engineering to obtain data, provided this has not been contractually excluded. However, when processing the data you must ensure that this does not result in any copyright infringements. We would be happy to check for you whether there is a specific risk of copyright infringement.

As an investigative journalist, you are allowed to report on trade secrets if you do so to protect a legitimate interest. Again, assessing whether you are committing an infringement by making the disclosure is difficult. Legal advice should definitely be sought.

You should develop guidelines for employees and raise their awareness of the issue through training or professional information materials. For example, unauthorized action when obtaining problematic information should be prohibited and if business secrets have been obtained from third parties, the authority of the third party should be checked. If you have appropriate organizational and technical security measures, it is essential to observe them.

Since 2019, you as an entrepreneur are obliged to take appropriate measures to protect trade secrets. This is the only way you have claims against someone who uses your secrets.

First, you must identify information that requires protection. It is advisable to seek assistance from an external consultant. Next, you must evaluate and classify the information that requires protection according to its respective protection requirements. In order to standardize the evaluation criteria across the company, you should define an internal classification guideline that your employees can follow. Based on the classification, suitable protective measures must now be taken. These can be organizational, technical or legal. Possible measures include appointing a person responsible and adapting business processes. You can also specify access restrictions or contractual restrictions in employment contracts, for example. You must also document these measures so that you can prove that you have taken appropriate measures in the event of a violation of law. These measures must of course be continually reviewed and adjusted in order to remain appropriate. We would be happy to help you draw up a classification guideline that is optimally tailored to your risks and advise you on the perfect measures.

You can assert your claims by issuing a warning to the infringer. The warning must be formulated very precisely in order to be effective, which is why it is advisable to seek legal advice. We would be happy to help you draft a warning.

You can also file a criminal complaint with the public prosecutor’s office. We will be happy to support you in this as well.

You have various civil claims against the injured party:

Removal and omission: the other party must remove the impairment and undertake not to commit it again

Damages: Calculation can be done in three ways

-Compensation for actual damages including lost profits

             -Distribution of the profit achieved

             -Payment of a reasonable license fee

Information: about infringing products and compensation for damages in case of violation of the obligation to provide information

Destruction, surrender, recall, removal and withdrawal from the market

Reimbursement of warning costs: if the warning is justified, you can demand reimbursement of the legal costs you have incurred from the other party.

You can also take criminal action against the violator.