A request for an injunction is considered urgent even if the company does not monitor data flows. In addition, the Frankfurt Higher Regional Court reiterates the correct wording of the request for an injunction.
Compliance with the urgency deadline does not require monitoring
In a ruling dated November 27, 2020, the Frankfurt Higher Regional Court clarified that, even when software is used to monitor the company’s network, there is no obligation to review all data movements without cause in order to meet the urgency requirement for an injunction proceeding. Nor is it necessary to configure the software so that potentially suspicious data movements are automatically reported (although the court expressly leaves open whether such an approach would even be legally permissible). Rather, a retrospective analysis of data movements is sufficient if grounds for suspicion arise based on other circumstances (Frankfurt Higher Regional Court, Decision of November 27, 2020, Case No. 6 W 113/20).
Specificity of the injunction request in trade secret cases
At the same time, the Frankfurt Higher Regional Court notes that the injunction request must also – and especially in proceedings under the GeschGehG – meet the requirements of Section 253 (2) no. 2 of the German Code of Civil Procedure (ZPO). The request filed by the petitioner in that case serves as a textbook example of how such requests should not be drafted:
In the primary claim, the petitioner sought an order requiring the respondent (a competitor) under threat of the usual coercive measures, to refrain from
“from using and/or disclosing to third parties the applicant’s trade secrets in its possession concerning the applicant’s order situation, the applicant’s bidding processes, and/or the applicant’s existing business relationships with customers and/or suppliers, in each case within the business areas of nonwoven fabrics, in particular wetlaid nonwovens, “
Such a motion cannot, of course, succeed. It is not even remotely clear which trade secrets are being referred to, let alone which ones are alleged to be in the respondent’s possession. The (first) alternative motion was not much better. It sought to enjoin the respondent from
“the applicant’s trade secrets contained in Exhibits ASt 12, ASt 14 through ASt 16, and ASt 20, concerning the applicant’s order backlog, the applicant’s bidding processes, and/or the applicant’s existing business relationships with customers and/or suppliers, in each case within the nonwoven fabrics business segment, in particular wetlaid nonwovens (“Wetlaid”), and/or to disclose them to third parties “.
Such a request is sufficiently specific only if all information contained in the specifically identified exhibits constitutes a trade secret. However, if this is not the case, if certain documents contain both trade secrets and other, generally known information, the applicant must specifically identify the information that, in its view, constitutes a trade secret.