The Trade Secrets Protection Act(GeschGehG) came into force on April 26, 2019. The Act transposes Directive (EU) 2016/943 on the protection of trade secrets against their unlawful acquisition, use and disclosure into German law. In the meantime, several court decisions have been issued, which are summarized below.

ArbG Aachen, judgment of. 13.01.2022 - 8 Ca 1229/20

1. if the opposing party plausibly argues that competitors could have obtained secret information by means of reverse engineering, the claimant must substantiate and, if necessary, prove that his products are based on knowledge not known on the market.

2. if the opposing party disputes that appropriate confidentiality measures within the meaning of Section 2 No. 1 lit. b GeschGehG have been taken, the claimant must explain in detail and , if necessary, prove which protective measures he has taken to keep this information confidential.

3. a general provision in the employment contract (see below) that extends to all company information received during the employment relationship (so-called catch-all clause) is not an appropriate confidentiality measure within the meaning of § 2 no. 1 lit. b GeschGehG.

"Mr./Mrs. [first name and surname] shall maintain confidentiality regarding all trade and business secrets and all other matters and transactions of the company that come to his/her knowledge in the course of his/her work. He/she will ensure that third parties do not gain unauthorized knowledge."

LAG Baden-Württemberg, judgment of. 18.08.2021 - 4 SaGa 1/21

  1. In the opinion of the court, the price calculation at issue was the subject of confidentiality measures that were reasonable under the circumstances within the meaning of Section 2 No. 1 lit. b GeschGehG and constituted a trade secret within the meaning of Section 2 No. 1 GeschGehG. Among other things, the claimant had implemented a specific IT guideline, a "need to know" principle and a corporate compliance system . In addition, the claimant had used a contractual clause in which the defendant (compliance officer) was obliged to maintain confidentiality regarding business secrets - also post-contractually. In the opinion of the court, this clause was not worded too generally. This was because "business and trade secrets relating to the management [designation of a division] and confidential issues of the management and executive board" were expressly named.
  2. An interim injunction to refrain from using a trade secret is ruled out due to a lack of risk of commission or repetition if it is established on the basis of the defendant's affidavit that he is no longer in possession of the trade secret (see also LAG Rhineland-Palatinate, judgment of 25.01.2021 - 3 SaGa 8/20).

Practical tips

  • Catch-all clauses are invalid under GTC law because they go beyond the employer's legitimate interests. A legitimate business interest of the employer in confidentiality must be limited to specific data and facts (see also LAG Düsseldorf, judgment of 03.06.2020 - 12 SaGa 4/20; LAG Cologne (2nd Chamber), judgment of 02.12.2019 - 2 SaGa 20/19). This also corresponds to the prevailing view in the literature (see Fuhlrott/Fischer NZA 2022, 809 (812); Köhler/Bornkamm/Feddersen/Alexander UWG, 40th ed. 2022, GeschGehG Section 2 para. 61 a; Apel/Stolz GRUR-Prax 2021, 1 (2); Hauck GRUR 2022, 530 (535); Hoeren/Münker MMR 2021, 523 (524); Holthausen NZA 2019, 1377 (1380).
  • In the event of a dispute, the claimant bears the burden of presentation and proof for the existence of a trade secret and the implementation of appropriate confidentiality measures. 
  • In the opinion of the ArbG Aachen, the claimant's submission regarding the appropriateness of confidentiality measures must not be limited to general statements on the general level of protection. Rather, a detailed description of specific measures taken (confidentiality management) is required, which in particular also relate to the specific information in dispute. In addition to a list of various measures, it must therefore be specifically described how exactly these measures protect the information in dispute.
  • The two decisions contain important information on appropriate confidentiality measures and are worth reading for this reason alone.