Düsseldorf, August 2018

The Federal Government has implemented the draft law regarding  the EU Directive 2016/943 on the protection of trade secrets against unlawful acquisition, use and disclosure. The soon to be implemented directive places new requirements on the existence of a “trade secret”.

According to the previously applicable definition, a trade secret is any fact in connection with a business that

  •  is not overtly known, but instead only known to a limited circle of persons, and
  •  is to be kept secret according to the expressed will of the proprietor, which is based on a sufficient economic interest (BGH, Urt. v. 07.11.2002 – I ZR 64/00).

The previous legal situation was thus very much designed for the benefit of the proprietor of the trade secret and did not place too great demands on the existence of a trade secret.

Now, however, a trade secret only exists when the information

  •   is secret, i.e. is neither in its entirety nor in its particulars known or readily accessible to the persons in the circles who normally deal with this type of information, and
  •   is therefore of economic value and
  •   is the subject of appropriate (under the circumstances) confidentiality measures by its proprietor.

It is therefore no longer subjectively a matter of the intention of the proprietor of the secrets, but objectively of appropriate measures of secrecy, which must be proven by the proprietor of the secrets in the event of a dispute. If no appropriate secrecy measures are undertaken by the proprietor of the secrets or if he cannot prove such measures, there is no trade secret and the proprietor of the secrets cannot assert any claims for damages or injunctive relief in the event of possible infringements of rights by third parties, which means he is defenseless against the result of an infringement!

What “appropriate secrecy measures” in the sense of the law actually are has not yet been determined and will also depend on the circumstances of the respective individual case. The explanatory memorandum of the law states that the confidentiality measures “depend on the particular nature of the trade secret and the concrete circumstances of its use”. In the near future, it will in particular be the task of the courts to establish principles on the question of which confidentiality measures are “appropriate” in the sense of the EU Directive or the German Implementation Law.

If you are dependent on the protection of trade secrets in your company, you should already now subject the secrecy measures taken so far to an examination or draw up a concept for the implementation of such secrecy measures. Of course, we are happy to support you in this.

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