GERMANY Law and Practice Contributed by: Thomas Nägele, Simon Apel, Jonathan Drescher and Alexander Stolz, SZA Schilling, Zutt & Anschütz
far. This has now changed with the TSA coming into force due to the stricter liability imposed (in particular, the introduction of claims by the trade secret owner for recall and destruction of infring - ing goods). However, since German law does not assign the content of trade secrets to a company, but allows the former employee to use all knowledge they have memorised, the new employer fulfils its obligations if it informs the employee of the prohibition on using old documents. 5. Trade Secret Litigation 5.1 Prerequisites to Filing a Lawsuit There are no specific prerequisites to be obeyed before initiating litigation (eg, a mediation proce - dure) in main proceedings. However, an immedi - ate filing of a lawsuit without sending a warning letter might have implications for the owner’s obligation to bear the costs if the defendant immediately acknowledges the claims raised as justified. Furthermore, due to a recent change in case law, in preliminary injunction proceed - ings the applicant is usually required to send a warning letter and to await the reaction of the defendant before filing a motion for preliminary injunction. 5.2 Limitations Period Under the TSA, trade secret claims are sub - ject to German law’s standard limitation period of three years. This period commences at the end of the year in which the claim arises and the trade secret owner obtains knowledge of the circumstances giving rise to the claim and of the identity of the obligor, or would have obtained such knowledge if they had not shown gross negligence.
Furthermore, in so far as the infringer has acted intentionally or negligently, they are obliged, even after expiry of the limitation period, to return to the trade secret owner whatever they have obtained through the unlawful use at the expense of the owner. However, this applies only to the extent that the enrichment is still in the infringer’s possession. This claim expires six years after the expiry of the limitation period of the original claim. 5.3 Initiating a Lawsuit To initiate a trade secret lawsuit, the owner must identify the competent court (see 5.4 Jurisdic- tion of the Courts ), pay an advance on court costs (see 7.4 Attorneys’ Fees ) and file the application. In addition, the owner may request that the court classify all or part of the informa - tion in dispute as confidential (see 5.8 Maintain- ing Secrecy While Litigating ). 5.4 Jurisdiction of the Courts With regard to trade secret claims, the regional courts ( Landgerichte , or LG) have exclusive juris - diction. Furthermore, in each German state there is a limited number of specialised regional courts that deal exclusively with trade secret cases. Thus, a trade secret owner would have to review which regional court is competent for the alleged trade secret infringement in the respective case. The standard local jurisdiction is that of the court in whose district the defendant has their general place of jurisdiction. 5.5 Initial Pleading Standards There is no stricter particularity standard appli - cable to trade secret claims. This means that, in principle, the allegation of a misappropriation of a trade secret based on “information and belief” is sufficient for the submission of a pleading. However, if the defendant denies the infringe - ment, the claimant must prove their claim. This
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