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Dissertation
Immaterialgüter- und Wettbewerbsrecht

Trade Secrets and Employee Mobility: in Search for an Equilibrium

This project analyses the existing legal practices and on that basis proposes solutions for balancing the rights of trade secrets holders and departing employees in a situation when an employee leaves an innovative company to join a rival or to start his or her own competing activity.

Last Update: 01.12.12

Trade secrets are reported to be one of the innovative companies’ main assets. Yet, their enforcement seems to present a considerable amount of uncertainty, connected in particular to the problem of balancing the interests of enterprises relying on trade secrets and those of other market participants.

One of the situations carrying a risk of trade secret misappropriation is employee movement – a case where an employee who has been exposed to his employer’s secret know-how, leaves the company and takes up an activity with a competitor, or starts his or her own, rivalling, company.

The issues connected to such a scenario include defining the type and extent of knowledge or information obtained while working with the former employer, that can be used in a competing activity after this employment has terminated. Another problematic area would be the assessment which remedies can be granted in the case of misappropriation and how should they be designed. In this respect an analysis of the conflicting interests pertaining to trade secrecy will be necessary, together with an examination of the specific nature of trade secrets, the need to balance interest in self-determination, protection of property and fairness of competition, or the incentive theory behind innovation and public interest in the dissemination of knowledge.

As methodology, a comparative method has been chosen. The analysis will cover the rules governing the relevant aspects of trade secrecy in Germany, United Kingdom and in the USA, each presenting a different approach.

The analysis will be grounded on legislation, case-law, legal and economic literature, studies and reports.

Persons

Doctoral Student

Magdalena Kolasa

Supervisor

Dr. Gintare Surblyte

Doctoral Supervisor

Prof. Dr. Ansgar Ohly

Main Areas of Research

Interessensausgleich