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Information and accounting claims: no possibility of invoking a trade secret for the first time in enforcement proceedings

In its decision of April 29, 2020 (Case No. I-2 W 9/20), the Düsseldorf Higher Regional Court clarified that the objection by the party liable to provide information that there would be an alleged necessity for measures to protect business secrets is a substantive legal objection which cannot be taken into account in enforcement proceedings.

The Regional Court of Düsseldorf had previously imposed a penalty payment of € 5,000.00 each upon the debtors for not providing information and rendering accounts properly.

The debtors act of depositing information with a notary’s office selected by them without the creditors’ consent does not have the effect of fulfilment pursuant to § 362, Subsection 2, BGB in conjunction with § 185, Subsection 1, BGB. According to the Düsseldorf Higher Regional Court, this assessment does not differ with regard to the subsequent deposit of information with the depository of the Ratingen Local Court, as this only has the effect of fulfilment, in accordance with § 378 BGB, if a withdrawal of the information is excluded.

Furthermore, the Düsseldorf Higher Regional Court states that, apart from the fact that the Patent Act, at least not before the planned introduction of Sec. 145a Patent Act, does not provide for a protection of secrets in the form referred to, this is not a substantive objection that excludes the claim under substantive law and which can be taken into account in enforcement proceedings.

Furthermore, the Court did not accept the debtors’ objection that, with regard to their right to protect business secrets, it was unreasonable to expect an unconditional disclosure of the information owed and that, without the conclusion of a confidentiality agreement, their business secrets could not be protected.

Practical tip:

Experience has shown that the complete fulfilment of the claims to information and accounting and the associated expense is feared at least as much as the claim to injunctive relief itself. Furthermore, if it is to be feared that confidential information or business secrets will be disclosed to the opponent as a result of providing the information and accounting, this cannot be made dependent on the prior conclusion of a non-disclosure agreement. Instead, it is advisable to explain in detail beforehand, in the course of the principal proceedings, that trade secrets worthy of protection might possibly have to be disclosed in order to discuss appropriate protective measures with the court seised.

Our blog contributions shall provide an overview with regard to legal topics, legislation and case law and are supposed to provide some general information rather than constituting any specific advice. Please do not hesitate to contact Maiwald and in particular the authors of the particular contributions if have any questions on the addressed topics or on other legal issues.

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Dr. Christian Meyer



Certified IP Lawyer

UPC Representative