NEWS

Four-Year Review of the Trade Secrets Act (GeschGehG)

 Contents

The Trade Secrets Act (GeschGehG), which came into force on April 26, 2019, is based on the EU Directive for the protection of confidential know-how and business information. It marks a significant improvement in the protection of trade secrets in Germany, which were previously primarily regulated under criminal law as “betrayal of trade and business secrets.”

Key Aspects of the GeschGehG

  • Strengthening the Rights of Secret Holders: The law strengthens the claims of holders against potential violators of their trade secrets.
  • Requirement for Appropriate Confidentiality Measures: A key innovation is the need for “appropriate confidentiality measures” to protect know-how as a trade secret.
  • Definition of a Trade Secret: A trade secret is information that is not generally known or readily accessible, has economic value, is protected by appropriate measures, and has a legitimate interest in being kept secret.

Challenges and Practical Implementation

  • Uncertainties in the Definition of Appropriate Measures: There is no clear list of measures that companies must take to protect their information as trade secrets.
  • Criteria for Assessing Appropriateness: These include the type of secret, its use, value, the nature of the information, company size, and existing confidentiality measures.
  • Various Protective Measures: Companies can implement organizational, technical, and legal measures, including access restrictions, contractual provisions, and non-disclosure agreements.
  • Need for Regular Review: Companies must regularly review and adjust their protective measures to safeguard their intellectual capital.
  • Burden of Proof on the Secret Holder: The holder must be able to prove the measures taken in the event of a legal violation.

New Developments and Outlook

  • Permission for Reverse Engineering: Another important change is the permission for reverse engineering according to § 3 Abs. 1 Nr. 2 GeschGehG, which allows a trade secret to be obtained by observing, examining, deconstructing, or testing a product. Previously, this was only allowed if any expert could derive the trade secret without significant time, labor, and cost. Therefore, it is important to keep “reverse engineering” in mind, especially in confidentiality agreements, and to consider it appropriately.
  • Further Development of Jurisprudence: As the GeschGehG is relatively new, further clarifications by the jurisprudence are expected.

To the point

Companies should continuously inform themselves about developments in the area of the GeschGehG and take and document appropriate confidentiality measures to effectively protect their trade secrets. We are happy to assist you in this regard.

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The Independent characteristic position of the Opposition Mark “COCO” in the challenged trademark “HiCoco”

CHANEL partially prevails – The Federal Patent Court in Germany (BPatG) rules that “HiCoco” cannot be claimed for perfume in Class 3.
Competition Law

No protection against imitation under unfair competition law for “Glück” (happiness)

Wird ein Produktname verwendet, der Emotionen hervorruft, wie „Glück“, dann ist dies ein Konzept, das über das Wettbewerbsrecht grundsätzlich nicht geschützt ist.
Copyright

Berlin Court of Appeal (KG) decides on the copyright permissibility of framing and the limit of Section 50 of the German Copyright Law (press privilege)

The framing of photos may be permissible under copyright law in the context of current events if this falls within the scope of Section 50 of the German Copyright Law (reporting on current events).

Karin Simon
Lawyer
Certified IP Lawyer

Susanne Graeser
Lawyer
Certified IP Lawyer

Uhlandstr. 2
80336 Munich
Germany

Phone +49 89 90 42 27 51-0
Fax +49 89 90 42 27 51-9

Karin Simon
Rechtsanwältin

Fachanwältin für
gewerblichen Rechtsschutz

Susanne Graeser
Rechtsanwältin

Fachanwältin für
gewerblichen Rechtsschutz

Uhlandstr. 2
D-80336 München

Tel. +49 89 90 42 27 51-0
Fax +49 89 90 42 27 51-9