Protection of Secrets and Know-How

According to the Law Against Unfair Competition (UWG) Business and Company Secrets are seperately protected in Germany. They comprise experience and know-how, especially of commercial character but also in technical sense, and have always been very important. In severe competition, where the capacities of each competitor have to be exploited to a great extend, involved persons are tempted to overcome the advantage of the business rival by all means. §§ 17 and 18 UWG essentially include four criminal elements, which only in parts refer to each other.

§ 17 para. 1 UWG refers to the disclosure of secrets by employees during a persisting employment relationship.

§ 17 para. 2 UWG, which years ago was considerably extended by the second law against white collar crime, includes – particularly with regard to modern data processing – in figure 1 some typical occuring acts considered as particularly dangerous, which comprise the danger of an unauthorized utilization and disclosure of other person's secrets. According to figure 2 the unauthorized utilization and disclosure of other person's secrets dishonestly obtained by the offender will be prosecuted.

§ 18 UWG refers to the unauthorized utilization of technical instructions entrusted to the recipient.

The subjective elements of crime concerning these regulations will not be described in detail here.

However, attention has to be paid to the fact that, although these norms are part of the law against unfair competition, they do not only imply competition situations. §§ 17 und 18 UWG are intentionally shaped as penal provisions and can also be applied in the cases of some other motives for crime. These regulations become effective in terms of civil law, primarily through § 19 UWG, § 823 para. 2 BGB and – as far as the offender acts for the purpose of competition – through § 1 UWG.

Not relevant is the existence of intellectual property rights for the secrets. If the secret is an invention, it does not matter, who is the owner or how the owner obtained it. This indeed is the most important case of the protection of secrets, Das ist gerade der wichtigste Fall des Geheimnisschutzes, that the legitimate person has not filed applications for a patent or utility model, because he prefers the protection of secrets. The character of novelty or special features of art are not required, an otherwise known and applied proceedure kann be a secret in a single case.

Generally the protection of secrets represents an alternative to (registered)-industrial property rights. In the most cases however, it can not be realized for practical reasons, especially if products placed at the market can be analyzed and reproduced by third persons - even if it may require a certain effort.

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