GERMANY Law and Practice Contributed by: Thomas Nägele, Simon Apel, Jonathan Drescher and Alexander Stolz, SZA Schilling, Zutt & Anschütz
3. Preventing Trade Secret Misappropriation 3.1 Best Practices for Safeguarding Trade Secrets Until 2019, appropriate confidentiality measures were not required for a legal protection of trade secrets under German law. Rather, the subjec - tive intention of the owner of the secret to keep it secret was taken into account. Therefore, as of yet only few court decisions have been ren - dered on this subject and for “best practices” one should refer to literature and guides on know-how protection. In this respect, it is always emphasised that a comprehensive protection system is required that interlinks personnel, technical and organisational measures (see 1.5 The basis of a know-how protection concept is always an analysis of the requirements for pro - tection, in which the information that needs to be kept secret is defined. It is recommended that the information be classified as “secret” , “confidential” and “openly accessible” and that clear rules for handling classified information are established. A security officer should also be appointed. Finally, suspicious features should be systematically observed (eg, strangers on the premises, anomalies in the infrastructure, dis - missals, copying of large amounts of data, pres - ence of employees at unusual times, untrace - able documents, unexplained loss of orders or customers, and appearance of copies on the market). Property protection measures can include the control of access to company prem - ises, securing the server area and video surveil - lance of sensitive areas. Reasonable Measures ). Organisational Measures
important trade secrets without concluding an NDA as an act of irresponsible negligence that could lead to the loss of the legal protection. In order both to avoid this risk and to ensure that appropriate confidentiality measures are in place, any disclosure of trade secrets to a busi - ness partner, including joint ventures, should therefore only be made after an NDA has been concluded. It should also be noted that con - tractual partners are entitled, without deviating from contractual provisions, to reverse-engineer products or prototypes provided by the other partner. 2.4 Industrial Espionage Section 4 (1) of the TSA provides protection against acquisition methods that cover most of the activities typically considered industrial espionage – ie, acquisition of a trade secret by unauthorised access to, appropriation of, or copying of any documents, objects, materials, substances or electronic files, lawfully under the control of the trade secret holder, containing the trade secret or from which the trade secret can be deduced. Trade secrets obtained in such ways may not be used or disclosed in any way. If the offender acts deliberately and with certain elements of malicious intent, obtaining trade secrets is also punishable by a fine or imprison - ment (see 9.1 Prosecution Process, Penalties and Defences ). In addition, there is a sophisticated regime of legal consequences consisting of injunctions and claims for damages as well as the destruc - tion, surrender, recall, removal and withdrawal of infringing products from the market. These consequences correspond to those of patent infringement.
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