Trade Secrets Act: what the new law does

Trade secrets are often an important economic asset in a company. This is why they are now also protected more efficiently in Germany: The Trade Secrets Act (GeschGehG) has been implementing Directive (EU) 2016/943 since spring 2019.

Up to this point, infringements of trade secrets were sanctioned under criminal law in the German Act against Unfair Competition (UWG), among others, and claims for injunctive relief and damages were based on the German Civil Code (BGB).

The GeschGehG now defines trade secrets and sets out the legal consequences of infringements (damages, injunctive relief, etc.). It is important to note that the definition of a trade secret is now based on objective criteria.

This provides clarity with regard to the protection of trade secrets, but also creates a need for action: Anyone wishing to invoke protection under the GeschGehG must demonstrate that they have protected know-how through externally recognizable, (objectively) appropriate confidentiality measures. Otherwise, protection under the GeschGehG will be denied.

It is therefore important for companies to develop individual protection concepts promptly, tailored to specific needs, which can vary greatly: organizational measures (recording & administration etc.) may be just as necessary as technical (access authorizations etc.) and legal measures (NDA etc.). Companies that have already taken the implementation of the General Data Protection Regulation seriously can now also benefit from this in connection with the protection of trade secrets.

Take precautions now and take the right measures!