GERMANY Law and Practice Contributed by: Thomas Nägele, Simon Apel, Jonathan Drescher and Alexander Stolz, SZA Schilling, Zutt & Anschütz
In contrast, the FCJ is bound by the facts found by the first-instance and the first appellate-level court. Thus, the second-level appeal is on points of law only. 9. Criminal Offences 9.1 Prosecution Process, Penalties and Defences Trade secret theft is prosecuted only upon request of the victim, unless the prosecuting authority deems there to be a special public interest in prosecution that calls for ex officio intervention. The available defences to a criminal charge for theft of trade secrets vary greatly depending on each individual case. It should be noted that, unlike in civil proceedings, there are no pre - sumptions or rules on reversal of the burden of proof, which means that the prosecuting author - ity must prove all the relevant facts. However, the prosecuting authority may search the premises of the suspected offender and order seizures. This will often enable the prosecutor to prove that the offender is in possession of a third party’s trade secret. However, if the perpetrator defends themselves by saying that they did not obtain the secret in an improper manner, or at least had no knowledge of an improper acquisi - tion, it will often be difficult to refute. The victim has a relatively weak position in Ger - man criminal proceedings. During the prelimi - nary proceedings, the investigation of the case is the sole responsibility of the competent law enforcement authorities, so that the injured party’s possibilities for co-operation are mainly restricted to providing testimony. In addition, the victim has (at least in principle) the right to inspect the investigation file. However, if there
is a suspicion of a violation of secrecy and the file contains trade secrets of the accused, an inspection will often fail due to the confidential - ity interests of the accused. The victim has no right to be present during searches by the public prosecutor’s office. If the main hearing takes place, the victim can join the criminal proceedings as a joint plaintiff. This enables them – at least to a certain extent – to influence the outcome of the proceedings in the form of statements, questions and motions. 10. Alternative Dispute Resolution 10.1 Dispute Resolution Mechanisms In spite of the growing significance of ADR in Germany, at present it is not very common in IP matters, and even less so in trade secret cases. However, it has to be taken into account that due to the difficulties in proving the facts and the (at least up to now) insufficient means for keep - ing secrets confidential, only very rarely are pro - ceedings concerning infringements of secrets brought before the regular courts. However, with the TSA coming into force and the excellent work of German courts in litigat - ing IP cases, it is to be expected that proceed - ings regarding trade secrets will rise. Compared to other countries, the courts work relatively quickly and at reasonable cost (see 5.11 Cost of Litigation ) and usually provide a substantial level of expertise. Hence, it is not necessary for the parties to rely on ADR in order to arrive at a proper solution for their dispute. Furthermore, a fruitless attempt at ADR is not a prerequisite for any court action. Nevertheless, ADR may still be appropriate in cases of long-term and multi - national agreements between the parties, rather than in infringement cases.
93
CHAMBERS.COM
Powered by FlippingBook