Trade secrets and know-how

Design drawings, recipes, source code and customer conditions are often the basis of business. Whether such information is legally protected as trade secrets also depends on how the company deals with it. A confidentiality note alone is not sufficient. We advise on the determination of information requiring protection, confidentiality agreements and action against unauthorised discharge.

What information need protection

According to § 2 GeschGehG several conditions must come together: The information is not generally known or easily accessible, therefore has economic value, is subject to appropriate confidentiality measures and is kept secret for legitimate interest. The examination therefore begins with the concrete knowledge, not with a flat stamp on all documents.

For a development company, manufacturing tolerances and test results can be particularly important; for a dealer individual purchasing conditions and unpublished sales planning. We arrange information according to the need for protection and determine with the responsible persons who needs it for which task. Publicly accessible knowledge and the general professional experience of employees should be distinguished from this.

Contract, technology and organisation must fit together

A suitable confidentiality agreement designates the purpose and scope of the permitted use. It also regulates the transfer within a project group, to affiliated companies or subcontractors. In addition, there are returns, deletion, handling backup copies and dealing with legal disclosure requirements. Not every unlimited confidentiality clause is effective. In the case of employees in particular, flat-rate post-contractual bonds are problematic.

The company is concerned, among other things, with graduated access rights, secure exchange channels, the identification of sensitive documents and comprehensible approvals. Measures must match the value of information and actual risks. A directive only helps if it is applied. Responsibilities, instructions and changes in allowances should be documented for subsequent proof.

Development Partnerships and Staff Departures

Before a cooperation, it is necessary to clarify which existing knowledge will be brought in and who will be entitled to new results. A contract should cover rights of use, publications, IP applications and access to the end of the project. The question whether a product may be examined or dismantled must be examined separately: § 3 GeschGehG allows so-called reverse engineering under certain conditions. There is no general legal ban.

When employees leave, the transfer of projects, the return of equipment, the withdrawal of allowances and the securing of operational documents should be coordinated. A legitimate security interest does not allow an incessant review of all private messages. Data protection, personal rights and, where appropriate, participation remain to be observed. Likewise, confidentiality requirements must not unduly restrict legally protected messages.

Example: Customer data before changing employers

Fictional case for illustrative purposes: Shortly before his departure, a sales representative exports an extensive customer file. Exports alone do not yet answer whether there is an infringement. In particular, the content and confidentiality of the data must be checked, their authorization, the service purpose and concrete references to later use.

Meaningful first steps are the lawful securing of existing protocols, a narrowly limited clarification of the facts and the examination of still existing approaches. It is then possible to decide whether a request for omission, information or disclosure and, where appropriate, judicial protection of legal rights can be considered. The conditions and urgency must be demonstrated in individual cases. A rash public accusation can create additional risks.

What we can work out for your company

A mandate may concern the revision of a single confidentiality agreement or a protection concept for a business area. As a result, an overview of protected information, graduated contract regulations, a process for project start and project end as well as guidelines for dealing with suspected cases are considered. A description of the knowledge concerned, existing contracts and the current distribution of rights will help to get started.

For a Request First, a general description is sufficient. Sensitive documents should only be exchanged via a coordinated route of transmission.

Legal basis and decisions: GehG, in particular §§ 2–5 and 6–10; BAG, Judgment of 17 October 2024 – 8 AZR 172/23; § 26 BDSG – Employee data.

Situation as at 2 November 2026.

Further reading: Software, licences and open source · Internal investigations · BAG: Limits of flat-rate confidentiality clauses