GERMAN TRADE SECRET LAW FIRM

The protection of secrets, in particular the protection of business secrets, can affect a whole range of confidential, internal data. These range, for example, from technical know-how about the development of innovations to general information about business processes and customers.

Trade Secrets Protection Act

The Act on the Protection of Trade Secrets has been in force since April 26, 2019. This law regulates the protection of trade secrets independently and comprehensively for the first time. In particular, it provides for comprehensive civil law claims by the owner of the secret against the infringer of the trade secret.

Legal contract advice on the protection of secrets

However, the law alone does not lead to sufficient protection of secrets. Rather, the essential prerequisite for statutory protection of secrets is that the owner of the secret takes sufficient and appropriate measures to protect the secret. These measures depend on the individual situation of the company. They must therefore be reviewed again and again and, if necessary, adapted. A lawyer can help to draw up a suitable and up-to-date concept.

Measures to protect secrets also include, in particular, contractual measures. As a rule, it is advisable to agree on contractual protection of secrets in the relationship with (potential) business partners. Ideally, this should be done with the support of a lawyer. Especially in the exploratory phase of possible cooperations, know-how transfers or license agreements, it may be important to protect internal information through agreements with the potential cooperation partner. Information about facts that could be the subject of property rights is particularly sensitive. This includes, for example, technical inventions for which a patent application has yet to be filed. Or intellectual property that enjoys protection without further ado but should nevertheless not be disclosed, such as software protected by copyright. Also possibly non-protectable know-how, for example with regard to certain processes, is susceptible to unwanted disclosure.

The necessary protection can be achieved, among other things, through confidentiality agreements or so-called non-disclosure agreements (NDA). This not only involves defining the relevant secrets, but also, for example, certain protective measures or mechanisms. These provisions can also be included in a more comprehensive preliminary agreement. In addition, secrecy protection measures must be taken in relation to the employees.

Even if freely available samples and forms can provide a starting point for such agreements, it is generally advisable to adapt the provisions to the individual case and to take into account special features of the facts. Particularly as a result of the now comprehensively regulated protection of secrets by the Act on the Protection of Business Secrets, care must be taken to ensure that the contractual provisions are effective. However, agreements with employees are also subject to a whole series of (potential) restrictions on effectiveness.

Provisions that are too strict or too far-reaching read well, but are useless in the event of a conflict because they are invalid. Comprehensive legal advice on contracts should take all this into account. The support of a lawyer specializing in this area is therefore advisable.

Legal advice on technical secrecy protection measures

A lawyer can also clarify which technical measures are considered necessary or sufficient secrecy protection measures by the jurisdiction. The law firm can draw on its technical understanding in the field of IT in this regard.

Legal advice and representation in case of breach of secrecy

Finally, an experienced lawyer is also helpful when violations occur – be it a violation of legal provisions or a breach of a confidentiality agreement. Then it may be a matter of an out-of-court warning, i.e. a request to cease and desist. Or a court order for an injunction. In the medium and long term, there are claims for damages. These, too, will ultimately be enforced in court. And for this, too, the company usually needs a lawyer.

B2B secrecy protection

Trade secret protection can be divided into B2B and company – employee. The law firm operates primarily in the B2B area. Thus, the law firm advises and represents companies mainly when trade secrets are to be protected in relation to another company. Or when a company violates the trade secrets or related contracts of the other company.

Protection of Secrets in the Relationship between Company and Employee

However, the relationship with the employee also plays a role in the B2B area. In particular, the question is whether sufficient and effective measures have been taken to protect secrets in the relationship with the employee. In practice, disputes usually arise between companies and (former) employees. Here, too, the law firm provides assistance. Both out of court and in court.