In its recently published decision, the Nuremberg Higher Regional Court addressed the requirements for the publication of a judgment pursuant to Section 21 GeschGehG, thereby issuing (as far as can be determined) the first decision on this topic (Nuremberg Higher Regional Court, preliminary ruling dated Sept. 9, 2025, and ruling dated Dec. 18, 2025, Case No. 3 U 158/25.)
Background of the Decision
The plaintiff is the operator of a subscription-based health policy information database. He had entered into a license agreement with the defendant, a pharmaceutical company, which limited use of the database to ten specifically named employees of the defendant and expressly prohibited the disclosure of access credentials. Nevertheless, an employee of the defendant, with the defendant’s consent, disclosed his password to two employees of an affiliated company. After this intra-group disclosure came to light, the plaintiff asserted claims for injunctive relief, disclosure of information, and damages, based in part on the GeschGehG.
The Regional Court of Nuremberg-Fürth largely upheld the claim in the first instance (judgment of Dec. 27, 2024, Case No. 19 O 556/24, available here). What was notable about the decision was that the court recognized that not only can the compilation of information in a database constitute a trade secret, but even individualized access data – such as a password – can be classified as a trade secret. The defendant was ordered to refrain from disclosing access data to unauthorized third parties in the future and was required to provide information. In addition, the plaintiff was awarded damages. However, the court dismissed the claims based on copyright and competition law, as well as the claim for publication of the judgment pursuant to Section21 GeschGehG. The plaintiff appealed this decision. We have already reported in detail on the first-instance judgment in another article (here).
Confidential Nature of the Information System
The Senate of the Nuremberg Higher Regional Court has doubts regarding the confidential nature of the information system and the related question of whether an unauthorized disclosure occurred. A compilation of individual pieces of information that are publicly accessible on their own may, however, constitute a trade secret if their discovery, selection, and combination involve high costs and a significant investment of time.
However, there are doubts as to whether the plaintiff took the necessary and appropriate confidentiality measures. It would be necessary for even authorized users to be prohibited from disclosing the critical information. However, the license agreement does not contain sufficient provisions to prevent access from third parties. For example, it is not prohibited for third parties to be present during research, to take note of research results, or to use the system knowledge gained to develop their own information systems. Conducting research on behalf of third parties is also permitted. The know-how regarding the structure and functioning of the system is therefore not sufficiently protected.
The Senate, however, leaves open the question of whether trade secrets are at issue, since even if they were, the claim pursued on appeal would not be valid.
No Right to Publication of the Judgment
In the opinion of the Nuremberg Higher Regional Court, the plaintiff has no right to publication of the judgment under Section 21 GeschGehG. The required balancing of interests favors the defendant due to the specific circumstances of the case, including the nature of the trade secret and the defendant’s conduct.
1. Legal Classification of Section 21 GeschGehG
Pursuant to Section 21 GeschGehG, the prevailing party may, upon request, be granted the authority to publicly disclose the judgment at the expense of the losing party. This provision corresponds to the provisions on the publication of judgments found in intellectual property law (Section 19c MarkenG; Section 140e PatG; Section 47 DesignG, etc.). A prerequisite is the demonstration of a legitimate interest on the part of the prevailing party (which may also be the defendant).
In making this decision, pursuant to Section 21 GeschGehG, particular consideration must be given to the value of the trade secret, the conduct of the infringer in obtaining, using, or disclosing the trade secret, the consequences of the unlawful use or disclosure, and the likelihood of further unlawful use or disclosure. According to Directive (EU) 2016/943, the publication of the judgment serves primarily to provide an additional deterrent to potential infringers and to raise public awareness. Although the decision is within the court’s discretion, this discretion is reduced to zero if the requirements for the claim are met. However, the claim must be denied if the opposing party faces disproportionate disadvantages. The assessment must be based on a balancing of interests.
2. Application of Section 21 GeschGehG in the Specific Case
a) Value of the Trade Secret
The court emphasizes that a claim for publication of the judgment generally requires that the trade secret possess an above-average economic value, which justifies an increased need for deterrence. In the present case, the alleged trade secret infringement, in terms of its nature and severity, falls clearly within the lower range.
The Senate acknowledges that both the access data as a protective mechanism and the structured collection and processing of health policy information possess economic value in principle. However, this value is relativized by the fact that only the collection and processing of data as such enjoys specific protection under the Trade Secrets Act, not the individual publicly accessible documents. In this context, the possibility of quick and simplified access to documents – including those publicly accessible – is relevant to the extent that it actually facilitates access. Overall, therefore, the trade secret does not attain a particularly heightened value within the meaning of Section 21 (2) no. 1 GeschGehG that would justify publication of the judgment.
b) Conduct of the infringer
Nor does the defendant’s conduct justify publication of the judgment under Section 21(2) no. 2 GeschGehG. There is no particularly reprehensible conduct. The disclosure of access data such as passwords does not constitute either the circumvention of particularly enhanced protective measures or a breach of special trust, even if confidentiality had been contractually agreed upon. The defendant can indeed be accused of negligent conduct, as she should at least have had doubts regarding the authorization of users within the corporate group and thus disregarded the contractually prescribed procedure. However, this conduct is based solely on an incorrect legal assessment and does not amount to a heightened level of fault.
c) Consequences of the unlawful use
Furthermore, the court rejects any justification for the publication of the judgment under Section 21(2) no. 3 GeschGehG. The intra-group disclosure of the access data did not result in any permanent or serious devaluation of the plaintiff’s trade secrets. Unlike in typical cases of espionage or the sustained use of trade secrets, there was precisely no irreversible outflow of knowledge.
The effect characteristic of trade secret infringements – namely, that once disclosed, information remains permanently in the market – did not occur. Neither the storage of search results nor the copying of the information system was evident. Furthermore, any stored content would have rapidly lost value due to its time-sensitive nature. At the latest upon deactivation of the employee’s access, all adverse effects on the plaintiff’s protection of trade secrets ceased.
d) Probability of Further Unlawful Use
Section 21(2) no. 4 GeschGehG is also not satisfied. It is true that the publication of a judgment could, in principle, have a general preventive effect, particularly with respect to the plaintiff’s current and potential customers. Furthermore, the plaintiff also has a legitimate interest in preventing future password sharing. However, this objective could be achieved just as effectively by other means, such as by posting notices regarding the judgment obtained on the website or within the plaintiff’s information system. Publication, including the naming of the defendants, is not necessary.
Furthermore, the publication of the judgment is not expected to have a specific preventive effect, since the litigation itself, as well as the order to cease and desist, provide information, and pay damages, are already sufficient to prevent future violations. Furthermore, the facts of this case differ significantly from situations in which the public must be informed that an infringer has acted in violation of applicable provisions.
e) Summary of the balancing of interests
In conclusion, the Senate determines, as part of the balancing of interests, that publication of the judgment is not justified. The degree of wrongdoing involved in the alleged trade secret infringement is, on the whole, minor. Unauthorized access was limited to only two other individuals, who were not competitors of the plaintiff and who were not afforded any opportunity to develop a competing product.
No damage beyond the loss of a single license fee is apparent. In particular, it was not apparent that competitors could use the developed know-how for their own competing products. However, such scenarios are precisely what fall within the core scope of the Trade Secrets Act (GeschGehG). Furthermore, the unauthorized use lasted only five months and ended completely with the deactivation of the employees’ access. Although the publication of a judgment could, in principle, also constitute a confidentiality measure, only reasonable measures are required, not those that are ruled out following the necessary balancing of interests.
Conclusion
The decision makes clear that publication of a judgment under Section 21 GeschGehG is not applicable in every case of trade secret infringement. Rather, the decisive factors are the nature, severity, and consequences of the unauthorized disclosure of sensitive information. Since the publication of a judgment can have significant consequences for the losing party, the burden on the opposing party must be considered in the balancing of interests, in addition to the deterrent function.
A low economic value of the trade secret, the absence of storage or a copy of the information, and the lack of use of know-how clearly argue against the necessity of publishing the judgment. The mere disclosure of access data and the resulting use -provided that no lasting or further advantages are gained – are not sufficient to justify permitting the publication of the judgment.