Trade and business secret

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In the field of business , trade secrets and trade secrets are techniques, recipes or other information that must be treated as confidential towards competitors and the public.

While the trade secret covers the technical aspects of the secret, the business secret also covers the commercial aspects.

Definition in German law

There is no legal definition of the concept of trade and business secrets in German federal law. However, the term is defined in established case law.

In its decision of March 14, 2006, the Federal Constitutional Court stated:

Business and trade secrets are all facts, circumstances and processes relating to a company that are not obvious, but only accessible to a limited group of people and in whose non-disclosure the legal entity has a legitimate interest . Trade secrets essentially comprise technical knowledge in the broadest sense; Business secrets primarily concern commercial knowledge. Such secrets include, for example, sales, earnings, business books, customer lists, sources of supply, conditions, market strategies , documents on creditworthiness , calculation documents, patent applications and other development and research projects that can significantly determine the economic situation of a company [...]

The Federal Administrative Court defined in 2005:

Company and trade secrets are circumstances or processes in connection with the operation of a company, which are known only to a limited group of people, but are worth knowing for outsiders, which are to be kept secret according to the stated will of the company or business owner and which are known to outsiders Secrecy backing can lead to a disadvantage. Generally known circumstances and processes are not trade or business secrets even if the owner designates them as such [...].

In the following, only trade secrets are used, even if trade secrets are also meant in the sense of the distinction cited.

This means that four requirements must be met for information to be a trade and business secret:

  1. The information must be company-related,
  2. must not be obvious
  3. must remain secret according to the owner's will and
  4. there must be a legitimate interest in secrecy.

Legal protection of trade secrets

Company secrets are protected by criminal law in accordance with Section 203 , Section 204 of the Criminal Code and the Law on the Protection of Business Secrets (GeschGehG), which implements Directive 2016/943 / EU on the protection of business secrets . As this directive had not been implemented by June 9, 2018, it has been immediately applicable since then. In addition, up to the introduction of the GeschGehG in April 2019, trade secrets were protected by §§ 17 ff. UWG (see also secrecy ).

Numerous legal norms stipulate the protection of trade secrets by the state when it becomes aware of them. The Federal Constitutional Court has decided that the basic right to freedom of occupation, Article 12 of the Basic Law , is the primary criterion for review when it comes to the disclosure of trade and business secrets. If the conduct of a competitor is to be judged in court and other competitors take part in the proceedings, a conflict regularly arises between the protection of trade and business secrets and the rules of comprehensive access to court files for all those involved in the proceedings.

In many industries, confidentiality agreements are often signed to protect trade secrets when details have to be disclosed due to cross-company cooperation. To circumvent this, reverse engineering is often carried out in the technical area, i.e. the attempt to draw conclusions about the development and technologies from product properties.

Individual evidence

  1. ↑ BVerfG , decision of March 14, 2006, Az. 1 BvR 2087/03, full text .
  2. ↑ BVerwG , decision of January 4, 2005, Az. 6 B 59.04, full text .
  3. ↑ BAG , judgment of December 15, 1987, Az. 3 AZR 474/86, full text ; BAG, judgment of March 16, 1982, Az. 3 AZR 83/79, guiding principle ; OVG North Rhine-Westphalia, decision of November 8, 2000, Az. 13 B 15/00, full text .
  4. ^ According to Goldhammer : Trade Secrets Directive and Freedom of Information, NVwZ 2017, 1809
  5. ↑ https://www.bmjv.de/SharedDocs/Gesetzgebungsverfahren/DE/GeschGehG.html
  6. ↑ Protection of secrets according to GeschGehG: New law for the protection of trade secrets . Loschelder Leisenberg Rechtsanwälte PartG mbB. Archived from the original on August 24, 2018. Retrieved February 7, 2019.
  7. ↑ Article 19 (1) 1 of Directive (EU) 2016/943. Retrieved April 2, 2019 .
  8. ↑ The EU Directive on the Protection of Secrets - How you can continue to protect your trade secrets in the future. Accessed April 2, 2019 (German).

literature

  • Thomas Sagstetter, Big Data and the European Legal Framework: Status Quo and Need for Reform in Light of the Trade Secrets Directive 2016/943 / EU (Big Data and the European Legal Framework: Status Quo and Need for Reform in Light of the Trade Secrets Directive ( EU) 2016/943) in: Mackenrodt / Maute, Recht als Infrastruktur für Innovation, Nomos Verlag 2018 ( forthcoming; advance publication on SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3219223 )
  • Carolina Wodtke, Swantje Richters, Marcus Pfuhl: Protection of company and trade secrets. Practical Guide. Erich Schmidt, Berlin 2004, ISBN 3-503-07898-3 .
  • Joerg Brammsen: Business secrets as constitutional property - The protection of trade and business secrets according to Art. 14 GG. In: Public administration . 2007, pp. 10-17.
  • Marcus von Welser, Alexander González, brand and product piracy. Strategies and approaches to combating them. Wiley-VCH, Weinheim 2007, ISBN 978-3-527-50239-4 .
  • Ingo Westermann: Handbook of know-how protection. CH Beck, Munich 2007, ISBN 978-3-406-51186-8 .
  • Christoph Ann, Michael Loschelder, Marcus Grosch (eds.): Practical manual for know-how protection. Carl Heymanns, Cologne 2010, ISBN 978-3-452-26892-1 .
  • Matthias Pierson, Thomas Ahrens, Karsten Fischer: Intellectual property law. Patents, trademarks, copyrights, design. 2nd, updated and supplemented edition. Vahlen, Munich 2010, ISBN 978-3-8006-3741-6 .
  • Eiichiro Kubota: Protection of Trade Secrets in Japan. In: AIPI Journal of the Japanese Group. International edition. Vol. 36, No. 5, 2011, ISSN  0385-8863 , pp. 231-238.
  • Markus A. Mayer: Business and trade secrets or secrecy? In: Commercial legal protection and copyright. GRUR. Vol. 113, No. 10, 2011, ISSN  0016-9420 , pp. 884-888.

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