What to consider when protecting trade secrets in court

26/11/2020

While the amendment to the Unfair Competition Act of 2018 (BGBl I 109/2018) was intended to strengthen and expand the protection of confidential company expertise, it is now up to the courts to follow suit. The first published decision of the Austrian Supreme Court (25.06.2020, 9 ObA 7/20z) on the protection of trade secrets provides insight into the first dos and don'ts during legal pursuits. Dos and don'ts in court According to the Supreme Court decision, it is advisable to describe the trade secret in question in as detailed a fashion as possible in the claim and the application for a preliminary injunction, and to refrain from using generic terms. Thus, despite the reduction of the standard of proof in the initial pleading, the general rules on the burden of proof in the Austrian Civil Code still apply. In principle, the burden of proof is thus on the party claiming the existence of a trade secret and its violation. The judge must be able to assume with a high degree of certainty that this factual assertion is true. The information to be protected as well as its commercial value for the company and the secrecy measures serving it must therefore be demonstrated in as detailed a manner as possible by means of appropriate evidence. For this purpose – as in the case of "normal" proceedings – all types of appropriate evidence are possible except the sworn testimony of the parties, i.e., witnesses, documents, etc.