§§ 26a-26j UWG govern the protection of trade secrets, comprising special civil law provisions designed to prevent confidential information from being unlawfully acquired, used, or disclosed. A trade secret exists only if information is not generally known or readily accessible, has economic value, and is actively kept secret through appropriate measures. The provisions comprehensively regulate when conduct is unlawful, which exceptions apply, and what claims—such as injunction, removal, or damages—are available to the holder of a trade secret. At the same time, they balance legitimate interests such as whistleblowing, freedom of expression, or employee mobility.

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Significance and Purpose of Trade Secret Protection

The protection of trade secrets pursues a clear objective: companies should be able to secure their valuable information against unauthorized access. This includes internal strategies, technical processes, or customer lists. Such information often provides a decisive competitive advantage.

With §§ 26a-26j UWG, an independent protection system has been created specifically tailored to such confidential information. These are special civil law provisions. They apply whenever a trade secret exists.

At the same time, the regulation ensures a fair balance between protection and freedom. Companies should be able to secure their secrets without restricting legally recognized interests. These include, in particular:

• the freedom of movement of employees
• freedom of information and public interests

Scope of Application of §§ 26a-26j UWG

§§ 26a to 26j UWG regulate the civil law protection of trade secrets and apply whenever confidential information is connected to an economic context and is unlawfully acquired, used, or disclosed. However, a prerequisite is that a trade secret in the legal sense exists. This means that the information must meet certain criteria and protection does not apply automatically.

At the same time, the scope of application is clearly limited. Protection ends where overriding interests or statutory requirements intervene. This particularly concerns:

• statutory disclosure obligations to authorities or courts
• whistleblowing and legitimate public interest
• general knowledge and professional experience of employees

This creates a balanced system: it specifically protects genuine trade secrets without restricting important freedoms and societal interests.

Definition of Trade Secret under § 26b UWG

A trade secret is not just any internal information. § 26b UWG clearly defines when legal protection exists. The decisive factor is that it concerns economically relevant and deliberately protected information.

A trade secret exists only if:

• the information is not generally known or readily accessible
• it has economic value due to its confidentiality
• it is protected by appropriate measures

Particularly important: No protection without active protective measures. Companies must therefore themselves determine which information is confidential and how it is secured.

Not protected, however, are general knowledge and professional experience of employees. The law protects only deliberately secured know-how, not everyday knowledge.

Distinction from General Knowledge and Professional Experience

Not all knowledge within a company constitutes a trade secret. The law clearly distinguishes: General knowledge and professional experience remain freely usable. This includes skills that employees acquire in the normal course of their work.

A trade secret exists only if the information is deliberately protected and not freely accessible. Once knowledge is common in the industry or can be easily obtained, protection ceases. The practical effect is therefore decisive: If an employee can use their knowledge without difficulty at a new employer, this strongly suggests it is not a trade secret.

Requirements for the Protection of Trade Secrets

Legal protection applies only if certain requirements are met. These requirements ensure that only genuinely protectable information is covered.

Central is the interplay of:

• confidentiality of the information
• economic significance
• active protective measures by the company

If any of these requirements is missing, there is no protection under the UWG. Companies must therefore consciously decide which information they wish to secure and how they proceed.

Information Requiring Confidentiality

Information is protected only if it is actually secret. This means: It must not be generally known within the relevant professional circles and must not be readily accessible.

The focus is not on the general public, but on the respective industry. Even information consisting of individual known components can be protected if their specific combination is unique.

Typical examples include:

• internal calculations
• special manufacturing processes
• strategic business plans

The decisive factor always remains that the company has a legitimate interest in confidentiality and seriously implements it.

Economic Value of Information

A trade secret must have clear economic benefit. Protection applies only if the information has value precisely because of its confidentiality. Without this connection, there is no legal protection.

This means: the information provides the company with an advantage, for example over competitors. This advantage can be concrete or merely potential.

Typical cases are:

• pricing and calculation models
• technical developments
• strategic planning

Insignificant or easily replaceable information is not covered. The decisive factor always remains that confidentiality brings genuine economic benefit.

Appropriate Confidentiality Measures

The legislator requires active protection. A trade secret exists only if the company takes concrete measures to secure it. A mere intention to maintain confidentiality is not sufficient.

Which measures are required depends on the situation. Particularly relevant are the significance of the information and the size of the company.

Typical measures include:

• access restrictions and IT security
• confidentiality agreements with employees and partners
• clear internal guidelines on handling sensitive data

The more important the information, the higher the requirements. Companies must therefore implement a comprehensible protection concept.

Unlawful Acts Concerning Trade Secrets under § 26c UWG

The law protects trade secrets against certain impermissible acts. § 26c UWG regulates when conduct is deemed unlawful.

Basically, the law distinguishes three forms:

• unauthorized acquisition
• unlawful use
• unlawful disclosure

A person acts unlawfully if they obtain a trade secret without permission or violate a confidentiality obligation. Disclosure to third parties can also constitute an infringement.

Furthermore, the law also covers indirect cases. Anyone who uses a trade secret even though they should have recognized that it was previously unlawfully obtained also acts impermissibly.

Thus § 26c UWG makes clear: Not only theft, but also improper handling of confidential information can trigger legal consequences.

Unauthorized Acquisition of Trade Secrets

Unauthorized acquisition occurs when someone obtains a trade secret without the holder’s permission. The law covers not only classic cases such as theft, but also more subtle approaches.

Typical cases are:

• unauthorized access to data or documents
• copying or photographing confidential information
• deception or exploitation of trust

The decisive factor is that access was not permitted or violates rules. Merely obtaining the possibility of access can be sufficient, even without actual use.

Unlawful Use of Information

Use is unlawful if someone uses a trade secret even though they are not authorized to do so. This applies regardless of whether the use pursues economic purposes.

Use is particularly relevant in the following cases:

• violation of confidentiality agreements
• use following unlawful acquisition
• breach of statutory or contractual obligations

Use can take many forms, such as improving one’s own products or deliberately exploiting competitive information. The decisive factor is always that the use violates existing obligations.

Unlawful Disclosure to Third Parties

Disclosure occurs when a trade secret is passed on to other persons or made accessible. The mere possibility that third parties could gain knowledge is sufficient.

Disclosure is unlawful particularly when:

• the holder has not given consent
• a confidentiality obligation is violated
• the secret was previously unlawfully obtained

Disclosure can occur deliberately or negligently. Even disclosure to just one person can already constitute an infringement.

Thus the law protects not only against access, but also against confidential information being disseminated in an uncontrolled manner.

Lawful Handling of Trade Secrets
under § 26d UWG

Not every use or acquisition of information is prohibited. § 26d UWG defines when handling trade secrets is lawful.

Permitted handling exists particularly when:

• the holder consents
• the information is independently developed
• it is obtained through permissible analysis of a product

Thus the law makes clear: Trade secrets do not grant a monopoly. Anyone who develops the same information themselves may also use it.

Furthermore, the law protects legitimate interests such as freedom of expression, whistleblowing, or official disclosure obligations.

Permissible Information Acquisition

Acquisition of information is permitted if it occurs through legal and comprehensible means. Particularly important here is so-called reverse engineering. This means that someone examines a lawfully purchased product to find out how it is constructed.

This refers to the analysis of a product that was lawfully acquired. Anyone who purchases a product may generally examine how it works or is constructed.

Typical permissible methods are:

• own research and development
• analysis of freely accessible products
• observation without deception or breach of law

However, limits exist where contractual agreements or clear prohibitions apply.

Significance of Consent and Agreements

The holder’s consent plays a central role. If such consent exists, a trade secret may be lawfully used or disclosed.

In practice, this consent is usually given through contracts. Particularly important are:

• confidentiality agreements
• Cooperation agreements
• license agreements

If a person violates such agreements, originally permitted use quickly becomes unlawful. Companies should therefore establish clear and comprehensible provisions to avoid later conflicts.

Exceptions such as Whistleblowing and Freedom of Information

The law protects trade secrets, but deliberately allows important exceptions. These exceptions safeguard fundamental rights and prevent abuse.

Disclosure can be lawful if it occurs in the public interest. This applies particularly in the following cases:

• disclosure of unlawful acts (whistleblowing)
• exercise of freedom of expression and information
• disclosure to authorities or employee representatives

Important: disclosure must serve a legitimate purpose. Mere curiosity or economic interests are not sufficient. The law thus creates a balance between secrecy protection and societal interests.

Claims for Infringement of Trade Secrets
under § 26e UWG

Anyone who infringes a trade secret must expect legal consequences. § 26e UWG regulates the most important claims of the holder.

At the center are:

• injunction against further use or disclosure
• removal of the unlawful situation
• damages in case of fault

The claims apply regardless of whether significant damage has already occurred. Even the threat of infringement can be sufficient to assert claims in court.

Injunction under § 26f UWG and Removal under § 26g UWG

The injunction serves to prevent further infringements. Even in case of an imminent infringement, the court can intervene and prohibit the action. Removal goes even further. It ensures that consequences that have already occurred are reversed. This includes:

• destruction or recall of infringing products
• removal of confidential information from systems

Both claims exist in principle regardless of fault. The decisive factor alone is that a trade secret has been infringed or such infringement is imminent.

Damages under § 26e UWG

In addition to injunction and removal, the holder of a trade secret can also claim damages, provided the infringer is at fault. This means: the infringer must have acted at least negligently.

Damages include not only actual loss, but also lost profits. Alternatively, the claim can also be measured by the benefit the infringer has gained from the use. In this case, the holder can demand the profit the infringer has made (disgorgement of profits).

Particularly relevant in practice:

• compensation for financial damages
• disgorgement of unlawfully obtained profits

Thus the law ensures that an infringement is economically not worthwhile.

Interim Injunctions under § 26i UWG and Legal Protection under § 26j UWG

To protect trade secrets quickly, the law provides for interim measures. These apply even before a final judgment is rendered.

The court can in particular:

• immediately prohibit use or disclosure
• seize or secure products

A major advantage lies in speed. The holder can react quickly if an infringement is imminent or has already begun. The court always examines proportionality. Measures are only ordered if they are necessary and appropriate.

Special Provisions in Employment Relationships

Special principles apply in employment relationships. The protection of trade secrets must not result in employees being excessively restricted.

The law makes clear:

• employees may not be subject to additional impermissible restrictions
• normal professional experience remains freely usable

Confidentiality agreements are permissible, but must not result in an employee being effectively prevented from further professional practice.

Thus the law creates a balance between:

• the protection of business interests
• and the professional freedom of employees

Confidentiality Obligations of Employees

Employees are generally obliged to protect trade secrets. This obligation often arises from employment contracts or statutory duties of loyalty and can continue beyond the end of the employment relationship.

At the same time, the law sets clear limits. The protection of trade secrets must not result in employees being restricted in their professional freedom. In particular, it remains permissible to use general knowledge and professional experience at a new employer.

The distinction is therefore decisive:

• protected trade secrets may not be disclosed or used
• professional experience and skills remain freely exploitable

A provision that effectively amounts to a professional ban would be impermissible. In such cases, there is much to suggest that no genuine trade secrets exist or the agreement goes too far.

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Significance of Confidentiality Agreements

Confidentiality agreements are a central instrument in the protection of trade secrets. They define which information is confidential and how it is to be handled. Such agreements are effective both during and after the employment relationship. They are legally permissible as long as they do not go too far.

Important are:

• clear definition of protected information
• comprehensible rules on use and disclosure
• appropriate duration of the obligation

A breach of these agreements generally results in unlawful use or disclosure within the meaning of the law.

Procedural Protection of Trade Secrets
under § 26h UWG

Trade secrets also remain protected in court proceedings. § 26h UWG contains special rules to ensure that confidential information is not disclosed in an uncontrolled manner.

The court can take various measures, such as:

• restriction of access to files
• use of redacted documents
• appointment of experts with special confidentiality obligations

Furthermore, judgments can be issued in two versions: a complete one with confidential content and an abridged version without confidential content. These provisions ensure that companies can enforce their rights without disclosing their trade secret.

Protection in Court Proceedings

Trade secrets also remain protected in court proceedings. Confidential information need not be unnecessarily disclosed. Courts can ensure that sensitive content is only accessible to a limited extent and is specifically protected.

Typical protection mechanisms are:

• access only for certain persons
• redacted documents in the file
• appointment of experts with confidentiality obligations

Thus companies can enforce their claims without fully disclosing their knowledge.

Handling Confidential Information in Litigation

Special handling of sensitive data applies in proceedings. Parties need not disclose every detail, but only enough for the court to assess the situation.

The court can also:

• create confidential and non-confidential versions of documents or judgments
• restrict access to certain information

At the same time, all parties who gain knowledge must observe strict confidentiality obligations. These apply even beyond the proceedings.

Risks of Inadequate Protection

Companies bear central responsibility: without adequate protective measures, legal protection ceases. The provisions therefore require an active and comprehensible security concept.

Typical risks are:

• missing or unclear internal regulations
• inadequate technical data security
• no contractual confidentiality agreements

Anyone who does not protect their information often loses the legal basis in a dispute. This can result in sensitive data being freely usable, even though it is economically valuable.

Your Benefits with Legal Assistance

The protection of trade secrets appears clearly regulated at first glance. In practice, however, uncertainties in distinguishing quickly arise, for example between secret information and normal professional experience, or in the question of whether adequate protective measures exist. This is precisely where legal support comes in.

An experienced attorney ensures that your sensitive information is legally effectively protected and can actually be enforced in an emergency. At the same time, you avoid typical mistakes that jeopardize the protection of a trade secret from the outset.

Your specific advantages:

• Legally secure structuring of confidentiality measures and contracts
• Rapid enforcement of your claims in case of unauthorized use or disclosure
• Clear risk assessment in case of employee changes, cooperation, or data disclosure

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Frequently Asked Questions – FAQ

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