What companies can learn from case law and the latest commentary on the German Trade Secrets Act – An interview with Dr. Axel Oldekop

Trade secrets are among the most valuable assets of many companies. But what happens when confidential know-how is disclosed without permission or used by a competitor? Whether a company can successfully enforce its rights depends on more than the nature of the information or the circumstances of the infringement. It often comes down to the measures the company took long before the dispute arose – and how well it can enforce its claims in court.

The fourth edition of the Büscher Commentary on the German Unfair Competition Act (UWG), published in 2026, now includes a comprehensive commentary on the German Trade Secrets Act (GeschGehG). Alongside the editor, Professor Wolfgang Büscher, attorneys Dr. Axel Oldekop, Dr. Athina Theodoridis and Dr. Peter Schneiderhan of Preu Bohlig & Partner contributed to this new part of the publication. Oldekop and Theodoridis jointly authored the commentary on Sections 6–14 GeschGehG, which deal primarily with civil remedies for trade secret infringement.

The IP Business Academy spoke with Dr. Axel Oldekop about some of the questions that came up during the work on the commentary and that also play an important role in litigation practice. In the first part of our interview, we discuss what makes trade secrets legally enforceable, why broad confidentiality clauses can become a problem, and how companies can protect sensitive information during court proceedings.

From legal commentary to business practice

IP Business Academy: Dr. Oldekop, you and your colleagues contributed to the commentary on the German Trade Secrets Act in the new edition of Büscher. Which part did you work on?

Dr. Axel Oldekop: Together with my colleague Dr. Athina Theodoridis, I worked on Sections 6–14 of the German Trade Secrets Act. These provisions deal mainly with the remedies available when trade secrets have been unlawfully acquired, used or disclosed.

They cover injunctions, claims for the removal of infringing products, information claims and damages, among other things. They also deal with the limits of these remedies, particularly when it comes to proportionality.

When you write a legal commentary, you have to look at how the statutory provisions work together with the case law that has developed around them. And you have to consider what all of this means in practice.

Trade secrets are particularly interesting in this respect. Unlike patents or trademarks, there is no register that clearly identifies the protected subject matter and its owner. In a dispute, the company first has to establish that the information actually qualifies as a trade secret under the law.

IP Business Academy: The German Trade Secrets Act has been in force since 2019. Looking at how the case law has developed, are there particular issues you think companies still underestimate?

Dr. Axel Oldekop: One fundamental issue is that many companies know perfectly well which information is commercially important to them. But they haven’t always thought through whether that information is legally protected – and what they would have to demonstrate if they needed to enforce that protection.

The law requires companies to identify the information they want to protect and to take reasonable steps to keep it secret. That may sound obvious. In practice, however, meeting those requirements is not always straightforward.

The problem becomes very clear when a company wants to take action against someone who has used its know-how without permission. At that point, it isn’t enough to refer generally to confidential information or valuable company knowledge. You have to explain exactly which information is protected and what you have done to keep it confidential. Just recently, the Federal Labour Court required the claimant to present evidence, in relation to each specific information concerned, regarding the confidentiality measures actually taken and their appropriateness.

So, something that may initially seem like an internal organizational matter can become a decisive factor in litigation.

What actually qualifies as a trade secret in court?

IP Business Academy: Under the German GeschGehG, information only qualifies as a trade secret if, among other things, it has been subject to reasonable secrecy measures. Where do you see the biggest challenge for companies?

Dr. Axel Oldekop: I think the challenge often starts with identifying what actually needs protection. Companies hold enormous amounts of technical, commercial and organizational knowledge. But not everything that is considered confidential internally automatically qualifies as a trade secret under the law.

Among other requirements, the information must not be generally known or readily accessible, it must have commercial value because it is secret, and the holder must have a legitimate interest in keeping it confidential. Reasonable secrecy measures are another essential requirement.

So companies need to ask themselves which specific information gives them a competitive advantage, and what would happen if a competitor gained access to it. That could be a manufacturing process, specific technical parameters, unpublished development data or commercially sensitive information.

Once you have identified that information, the next question is how you actually protect it. Simply declaring that all company information is confidential doesn’t replace the need to distinguish between different types of information and put appropriate protection measures in place.

IP Business Academy: Does that mean companies need comprehensive trade secret protection systems? Or is it more about choosing the right measures for the information concerned?

Dr. Axel Oldekop: The law requires reasonable secrecy measures, not the maximum level of protection imaginable.

But what is reasonable depends on the circumstances.

You might look at the commercial value of the information, how important it is to the business, how it is used, how many people need access to it and what the actual risks are.

Highly sensitive technological know-how may require a different level of protection from information that is routinely shared with numerous business partners.

I do not wish to suggest that, simply because the secret is important, the confidentiality measures must be more extensive or stricter. That is not what the law requires. What is important is that the holder of the secret makes it clear to the outside world what he claims to be his secret and issues a warning to those who come into contact with the secret: ‘Warning: this is my secret’. This warning and notification function of confidentiality measures is important. It can be achieved by technical access restrictions, organizational rules and contractual confidentiality obligations etc. What matters is how these measures work together. And it can only be sufficiently specific if the information in question has been identified beforehand.

And there’s another important point: if a dispute arises, the company needs to be able to explain what measures were in place and how they were implemented. So, I wouldn’t just look at whether a company has a confidentiality policy. If that policy exists on paper but isn’t followed in day-to-day operations, it may do very little to demonstrate that the information was actually protected.

IP Business Academy: Does that meant that documenting the protection measures is almost as important as implementing them?

Dr. Axel Oldekop: When it comes to enforcing trade secrets in court, being able to demonstrate what you have done is extremely important.

Of course, the measures themselves must actually exist and be reasonable. Documentation cannot replace that. But even the best measures are of no use if you cannot prove that they exist and work.

Take a company that restricts access to certain development data. In a dispute, it may become important to establish who had access, at what time, what technical restrictions were in place and whether those restrictions were actually applied.

If the alleged infringement only comes to light several years later, reconstructing those details without proper records can be very difficult. That’s why I think companies should consider the evidence they might eventually need at the same time as they design their protection measures.

Why broad confidentiality clauses may not be enough

IP Business Academy: Many companies rely on broadly worded confidentiality clauses in employment contracts. In your thoughts on the commentary, you specifically mentioned the Federal Labour Court’s case law on so-called catch-all clauses. What’s the problem with these clauses?

Dr. Axel Oldekop: A broader clause doesn’t automatically mean better legal protection.

In a recent decision, the German Federal Labour Court looked at a clause that required an employee to keep all internal company matters confidential indefinitely, even after leaving the company.

The court found that this kind of blanket post-employment confidentiality obligation placed an unreasonable burden on the employee and was therefore invalid. The underlying issue is the balance between a company’s legitimate interest in protecting confidential information and an employee’s freedom to pursue their profession.

When employees leave a company, they generally have the right to use the expertise, experience, and skills they have acquired, as long as this knowledge remains “in their heads” and they do not take any documents, data, samples, or similar items with them. Another question is whether they may use information obtained lawfully for their own purposes or, for example, for their new employer after leaving the company.

The decision by the Federal Labor Court shows that even when confidentiality obligations are agreed upon, the information in question must be specifically defined. Here, too, the key is for the company to clearly define its claim. If this is not done, the confidentiality clause lacks the effectiveness required to serve as a valid confidentiality measure. Confidentiality agreements need to reflect that distinction. An unlimited obligation to keep absolutely everything secret that an employee has ever learned at work can therefore be problematic.

IP Business Academy: What does that mean for drafting employment contracts? Do companies now have to list every single trade secret in the contract?

Dr. Axel Oldekop: Listing every individual trade secret in an employment contract would hardly be practical, and it isn’t necessarily required in every case. The important thing is to define confidentiality obligations with sufficient clarity and in a proportionate way.

Depending on the circumstances, it may make sense to identify particular categories of information, technological areas or especially sensitive types of know-how. What works will depend on the employee’s role and the information involved.

But we also need to distinguish between two separate questions.

One is whether a contractual confidentiality obligation is legally valid. The other is whether the information meets the statutory requirements for protection as a trade secret under the GeschGehG.

A valid confidentiality agreement can be an important part of a company’s secrecy measures. But it doesn’t automatically satisfy all the other requirements of the law.

On the other hand, the invalidity of a clause does not automatically mean that information protected by other means also loses its confidential status. For example, the Schleswig-Holstein Regional Labor Court ruled that while a comprehensive post-contractual confidentiality clause was invalid, it nevertheless affirmed that sufficient measures were in place based on the remaining technical, organizational, and contractual safeguards. Even an invalid clause still serves a practical warning and reminder function.

For companies, the practical lesson is that contractual protection shouldn’t be considered in isolation. It needs to reflect how confidential information is actually handled within the business.

Protecting trade secrets during litigation

IP Business Academy: Let’s turn to litigation itself. There seems to be a fundamental dilemma here. A company has to describe its trade secret in sufficient detail to enforce its rights, but at the same time it wants to prevent that information from becoming known to others. How can that work?

Dr. Axel Oldekop: That’s one of the particular challenges of trade secret litigation.

A claimant needs to present its case in enough detail for the court to decide on the claim and for the other side to defend itself properly. But disclosing the relevant information during the proceedings may create additional risks.

The German Trade Secrets Act therefore provides specific procedural confidentiality measures.

Under Section 16 GeschGehG, a court may, at the request of a party, classify information at issue in the proceedings as confidential if it may qualify as a trade secret. That classification creates specific confidentiality obligations for people involved in the proceedings. Under certain additional conditions, access to particular information can also be restricted.

The important point, however, is that these measures need to be requested at the right time and in the right way. The legal tools are there. But you have to make effective use of them in the particular proceedings.

IP Business Academy: But trade secrets can also become relevant in court cases that aren’t actually about trade secret infringement. What happens in those situations? Can companies protect their confidential information in the same way?

Dr. Axel Oldekop: Yes, and that’s an important development. Confidential business information doesn’t only come into play when the dispute itself is about trade secrets

Think of a contractual dispute, for example. A company might need to submit internal development documents, cost calculations or other commercially sensitive information as evidence. Naturally, it doesn’t want that information to become accessible to people who shouldn’t have it.

The good news is that since April 1, 2025, Section 273a of the German Code of Civil Procedure (ZPO) has been in effect, permitting such procedural measures to protect confidential information in all civil law disputes. In other words, courts can apply confidentiality measures similar to those available in trade secret litigation, even when the dispute itself concerns something entirely different. That gives companies more options, but they need to make use of them. From a litigation perspective, it’s important to think about confidentiality right from the beginning, rather than waiting until sensitive documents have already been submitted to the court.

IP Business Academy: What should litigators pay particular attention to here? Is it enough to ask the court to treat all submitted documents as confidential?

Dr. Axel Oldekop: A blanket request wouldn’t be the right starting point.

You first need to identify which information actually requires protection and what measures are appropriate.

Again, specificity matters. The court needs to understand which information the request concerns and why it may meet the statutory requirements. However, it is sufficient for the applicant to demonstrate that there is a possibility that the information constitutes a trade secret. The bar is low in this regard.

It’s also important to consider how that information will be introduced into the proceedings. If you submit sensitive documents without preparing the necessary protection measures and only start thinking about confidentiality afterwards, you may have created avoidable risks. The challenge is to protect confidential information effectively while respecting the other party’s procedural rights.

So confidentiality measures shouldn’t be treated as an afterthought. They need to be part of the litigation strategy from the outset.

Why jurisdiction also matters

IP Business Academy: You also mentioned the concentration of jurisdiction in trade secret cases. Why is that relevant for companies and their legal advisers?

Dr. Axel Oldekop: Trade secret disputes can be legally and factually complex. They often involve sensitive technical or commercial information, and the court may first need to establish whether that information is legally protected and how it has been used.

The GeschGehG contains specific rules on jurisdiction. German federal states can also make use of the option to concentrate certain proceedings before designated courts. So, one of the first things to clarify when preparing a case is which court actually has venue.

And this isn’t just about knowing where to file a claim…

Good litigation preparation also means deciding which remedies to seek, which facts need to be established and which confidentiality measures may be necessary. These questions become particularly important when urgent court action is required.

IP Business Academy: Looking at everything we’ve discussed – identifying trade secrets, reasonable protection measures, confidentiality agreements and the challenges of litigation – is there one overarching lesson for companies?

Dr. Axel Oldekop: I think the main lesson is that protecting trade secrets and enforcing them in court are much more closely connected than companies sometimes realize.

A company may own extremely valuable know-how. But if it cannot identify the protected information clearly or demonstrate that reasonable secrecy measures were in place, enforcing its rights may become difficult. At the same time, having a well-organized confidentiality system isn’t enough on its own. If an infringement actually occurs, the company still needs to pursue the appropriate remedies and manage the litigation properly. That’s why enforceability should be part of the thinking from the very beginning, when companies are deciding how to protect their confidential information.

Working through the statutory remedies and their practical application makes one thing particularly clear: you cannot really separate these issues.

Given the range of issues discussed, we have divided our conversation with Dr. Axel Oldekop into two parts.

In Part 2, we turn to the other side of trade secret protection: How can companies avoid facing trade secret infringement allegations themselves? What risks arise when employees join or leave a company? How should businesses deal with confidential information belonging to former employers? And what should they do if an allegation is made?

About Dr. Axel Oldekop

Dr. Axel Oldekop is an attorney at Preu Bohlig & Partner, specializing in intellectual property litigation and trade secret disputes. Together with Dr. Athina Theodoridis, he authored the commentary on Sections 6–14 of the German Trade Secrets Act (GeschGehG) in the fourth edition of Büscher, Gesetz gegen den unlauteren Wettbewerb – mit PAngV und GeschGehG (Carl Heymanns Verlag, 2026).

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Further reading: 👉 Litigation of Trade Secrets – dIPlex.