Trade Secrets

are any kind of commercial and technical information, which can be
inferred with certain effort only. Disclosure to a controlled circle of confidents
does not affect trade secret protection. Information capable of later protection
under industrial property rights usually enjoy trade secret protection prior to
and outside industrial property rights. Trade secret protection is principally
limitless. German trade secret protection is not affected by the marketing of
products containing trade secrets. It is not affected by independent third party
research. German statutory trade secret protection can be strengthened with
organizational, technical and contractual measures. The implementation of a
trade secret protection programme is advisable.

Trade secret protection imparts a factual monopoly: Trade secret owners
can stop any unauthorized procurement, memorization, communication
and exploitation of trade secrets by employees, competitors and any third
party. Trade secret violations are a business crime. This factor can be a
deterrent and in violation cases can support civil law measures including
injunctions and damage claims. The German legislator and judiciary have
continuously extended trade secret protection. In recent trade secret cases
German courts have imposed prison sentences of up to two years and fines of
up to € 100.000,-. In a new landmark decision (BGH, Kundendatenprogramm,
I ZR 126/03) the Federal Supreme Court has extended trade secret protection
against former employees. Criminal law and civil law risks for disloyal former
employees and engaging competitors have grown significantly.

In the information age trade secret protection gains growing importance
both nationally and internationally. Intellectual property worthy of protection
increasingly relates to commercial information unprotectable under traditional
industrial property rights, e. g. customer, marketing or financial data. As a
consequence of economic and practical considerations a growing number of
trade secret owners rely on programmatically strengthened trade secret
protection even in cases patent protection is available.