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Trade secrets: what is taboo, what can you talk about?

2021-10-01T09:56:23.682Z


Employment contracts often state that employees are obliged to maintain confidentiality. But such clauses are usually of little use. Questions to an employment lawyer: what is allowed and what is not?


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General confidentiality clauses as a free ticket?

When it comes to protecting business secrets, that's not enough, according to labor lawyer Patrick Zeising

Photo: Luis Alvarez / Getty Images

SPIEGEL:

Mr. Zeising, what is a business secret?

Patrick Zeising:

First of all, it has to be something that is not generally known.

Second: Employers must ensure that certain information is recognized and protected as confidential.

If a recipe is lying around openly in the company, then it's no secret that it has to be protected.

And third, there must be a legitimate interest in secrecy.

SPIEGEL:

Since 2019, the law on the protection of trade secrets (GeschGehG) has been intended to clearly regulate which documents, formulas or information are worth protecting.

So what if an employee changes her job and wants to use her old knowledge in her new job.

Can she do that?

Zeising:

That cannot be absolutely answered now either.

Basically, you can't forbid people to bring knowledge and experience to new jobs.

So you look at the specific case: What secret is it about?

Does it have any importance?

And: Has the employer declared it as such and protected it, for example with passwords and access rights?

What you are not allowed to do under any circumstances: Bring documents or files from your old job that contain certain formulas.

SPIEGEL:

Do you have a specific example?

Zeising:

You cannot simply take the Coca-Cola formula with you to another employer, not even if you happen to have it in your head.

If it is more or less general knowledge, not so specifically tailored to the old employer - or if he has no creditable interest in keeping it a secret - then it looks different.

Employees are sometimes obliged to keep everything secret - even if it is not secret.

SPIEGEL:

Can't employers simply have their employees sign a general confidentiality clause before starting their job - and thus have a free ticket?

Zeising:

You can actually find it in every reasonable employment contract.

The employees are then partially obliged to keep everything secret - even if it is not secret.

That is not enough.

If, for example, a “blockbuster” is to be developed for a company in a special project, it is necessary to have a separate non-disclosure agreement signed beforehand.

SPIEGEL:

What if an employer neglects such measures?

Zeising:

Then he is largely defenseless.

Since the introduction of the GeschGehG, the employer has to do something if he wants to appeal to employees that they will no longer use business secrets.

So the law has not so much changed the meaning of trade secrets as it has changed the conditions under which information is protected.

SPIEGEL:

Which companies do that in practice?

Zeising:

It is very different.

In pharmaceutical and IT companies and those that do research and develop patents, the systems often meet the requirements.

That was also the case before the introduction of the GeschGehG.

Trade secrets are at the core of your value creation, so you have to protect them well.

There is certainly still a lot to do at other companies that have done this casually before.

“You can perhaps still believe that you have memorized the data of five customers in your head.

But if customers churn on a large scale, you can take action against it. "

SPIEGEL:

What kind of trade secrets end up in court most often?

Zeising:

Especially cases in which employees took customer data with them to the competition.

These scenarios are of course the quickest to notice.

You can perhaps still believe that you have memorized the data of five customers in your head.

But if customers churn on a large scale, one can take action against it.

SPIEGEL:

How?

Some are certainly not interested in drawing attention to a leaked secret.

Zeising:

You can ask the person or the new employer to refrain from doing so. If that does not help, the further use of certain knowledge can be prohibited in a preliminary injunction procedure. There is no point if a year and a half later it is judged that the person should not have used it. In the event of a repeated violation, the former employee must then pay a fine, depending on the importance of the trade secret between 5,000 and 100,000 euros. If a company has lost sales as a result and can prove this, there is sometimes a risk of compensation. This can be expensive, but in practice it is the absolute exception. Processes for revealed secrets can also be carried out using confidentiality measures - so that the secret that has been divulged is not revealed again through the process.

SPIEGEL:

Is there actually a deadline for trade secrets?

Zeising:

The Coca-Cola formula is always protected, no matter how many years pass.

In other cases, one has to weigh up whether a company's interest in secrecy is justified.

That means: certain formulas or recipes that were developed five years ago can now be general knowledge and, in case of doubt, no longer be worth anything - so there is no interest in protecting them.

It's similar with old customer data.

In most cases, the following applies: the greater the interest in using it, the more likely there is still an interest in protecting it.

Source: spiegel

All business articles on 2021-10-01

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