The Trade Secrets Act (GeschGehG) established a modern legal framework for trade secret protection in Germany in 2019. Under the Act, information qualifies as a trade secret when it is secret (not generally known or easily accessible), has commercial value, and is protected by reasonable confidentiality measures. These three cumulative requirements must all be met — simply treating information as confidential internally is not sufficient without active protective measures.
Implementing technical and organizational protective measures is essential for effective trade secret protection. The Act requires 'reasonable confidentiality measures', which in practice include: access restrictions on sensitive information systems, confidentiality clauses in employment and supplier contracts, physical security measures, and clear internal policies on handling confidential information. The appropriate measures depend on the value and nature of the information concerned.
Contractual confidentiality obligations are a key instrument for trade secret protection. Well-drafted NDAs and confidentiality clauses in employment, supplier, and cooperation agreements extend beyond the statutory minimum requirements. When drafting confidentiality agreements, the scope of protected information, the duration of obligations, and the consequences of breach must all be carefully considered and clearly defined.
Employee retention and know-how transfer management are critical aspects of trade secret protection. Employees are legally obligated to maintain confidentiality, but these statutory duties often prove insufficient in practice. Companies should complement statutory protections with tailored contractual arrangements, structured offboarding processes, and technical measures that limit access to sensitive information on an ongoing basis.
Trade secrets under the GeschGehG are information that is secret, has commercial value, and is protected by reasonable measures. General know-how comprises skills, experience, and knowledge that employees acquire and use in their professional capacity. Employees retain the right to use general know-how in future employment.
'Reasonable' measures are those appropriate to control access to the trade secret given the circumstances. In practice this includes: confidentiality clauses in contracts with employees and partners, technical access restrictions on IT systems, physical security measures, and consistent enforcement of confidentiality policies.
You cannot prevent former employees from using general knowledge and skills acquired during employment — that would unreasonably restrict their professional development. However, you can prohibit the use of specific trade secrets that were protected by reasonable measures and to which the employee had access in the course of their duties.
If a competitor is using your trade secrets unlawfully, you have several legal remedies: injunction under the GeschGehG, damages, information claims, and destruction or return of documents. Evidence preservation is particularly important — legal advice should be sought promptly to avoid losing claims.
