At a glance
- Protection only with reasonable secrecy measures
- Reverse engineering generally permitted
- Act fast when employees leave
Since April 2019, the Trade Secrets Act (GeschGehG), implementing Directive (EU) 2016/943, protects confidential business information.
When information is protected
Information is a trade secret if it is not generally known and therefore has economic value, is subject to reasonable secrecy measures by its lawful holder, and there is a legitimate interest in secrecy (Section 2 no. 1 GeschGehG). Missing documented measures – access controls, marking, NDAs, IT security, training – are the most common weakness.
Permitted and prohibited acts
Independent discovery and reverse engineering of lawfully acquired products are permitted unless contractually excluded. Unauthorised acquisition, use or disclosure in breach of confidentiality is prohibited, with exceptions for journalism and whistleblowing.
Claims
Injunction, removal, destruction and recall, information and damages under the threefold calculation; serious cases are criminal (Section 23 GeschGehG). Courts can classify information as confidential during proceedings.
Case examples
A sales manager copies the customer file before joining a competitor. With access restrictions and NDAs in place, it is a trade secret; injunctions and damages are available.
Plans stored openly on a shared drive without NDA or marking are not trade secrets (§ 2 No. 1 GeschGehG).
Buying a device on the open market and analysing it is generally permitted (§ 3(1) No. 2 GeschGehG) unless contractually restricted.
Typical case: employee departure
An employee may use know-how in their head, but not files and lists. Act fast: forensic evidence, preliminary injunction, criminal complaint where appropriate.
