GERMANY Law and Practice Contributed by: Thomas Nägele, Simon Apel, Jonathan Drescher and Alexander Stolz, SZA Schilling, Zutt & Anschütz
requires the claimant to convince the court of their claim up to a point where the court does not have any reasonable doubts. 5.6 Seizure Mechanisms The trade secret owner can sue for recall, remov - al and withdrawal of infringing products from the market. In order to prevent further distribution of infringing products, they can have infringing products seized even before a final judgment. To obtain such a seizure order, the claimant must plausibly demonstrate that their right to recall exists and that the matter is urgent, meaning that an immediate seizure of the infringing products is necessary to prevent further infringement. The seizure is carried out by the bailiff. 5.7 Obtaining Information and Evidence The German Code of Civil Procedure recognises five types of evidence: • evidence taken by visual inspection; • evidence provided by hearing witnesses; • evidence provided by experts; • evidence provided by records and docu - ments; and • evidence provided by examination of a party. Since German law in general does not provide for disclosure or discovery, in many cases, obtaining the necessary evidence to support a trade secret claim constitutes a big problem for the trade secret owner. This is due to the fact that – in contrast to patent lawsuits, for example – the mere use of information is not sufficient for a claim under the TSA, but the owner must prove that it was acquired unlawfully. If the infringement is obvious, or the owner has already filed an infringement action against the infringer, the owner of a trade secret has a spe - cial claim for disclosure of certain information
against third parties who, in a commercial capac - ity, possessed infringing goods, used infringing services, rendered services that were used for the infringement or took part in any such action. In addition, during infringement proceedings, the defendant may be ordered to disclose spe - cific information to the claimant as part of the infringement claims – eg, with regard to the rev - enue generated by the infringing goods or ser - vices. However, these claims generally do not enable the owner to prove that the trade secret was acquired unlawfully. This often requires the initiation of criminal proceedings in order to ben - efit from the more extensive powers of the public prosecutor’s office (search and seizure). 5.8 Maintaining Secrecy While Litigating The court may, at the application of one of the parties, classify information relevant to the case as confidential, in whole or in part, if such infor - mation may be a trade secret. As a result, all participants in the proceedings are prohibited from using or disclosing the information outside the court proceedings. A breach of this confi - dentiality obligation may result in a fine of up to EUR100,000 or imprisonment for up to six months; in addition, the owner of a trade secret may initiate further proceedings for breach of a trade secret in the event of a breach of these obligations. Initially, these special protection measures only applied if the claim was based on a trade secret infringement. With the intro - duction of a new Section 273a in the German Code of Civil Procedure ( Zivilprozessordnung ,or ZPO) in effect as of 1 April 2025, these meas - ures are now in principle applicable in all civil law disputes, provided that the information in dispute can be a trade secret within the mean - ing of the TSA.
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