LD Hamburg, August 9, 2024, Procedural order concerning confidentiality, UPC_CFI_278/2023

The existence of a trade secret does not have to be established to the court’s satisfaction, but it is sufficient if this is predominantly probable, as shown by the wording in Art. 9 (1) and (2) (a) of Directive (EU) 2016/943, which alternatively refers to “alleged trade secrets”. Art. 58 UPCA also refers to the possibility of ordering protective measures “for the protection of trade secrets, personal data or other confidential information of a party to the proceedings” and thus provides an extended scope of protectable information.

Quality control thresholds, details of the supply chain and manufacturing tools can be considered a trade secret, as they allow conclusions regarding the quality of the associated products. The information – at least in the aggregate – was argued to disclose the whole supply chain and the key manufacturing steps for luxury leather products within the group of the Defendants, including internal codes whose significance was not known to the public. They explained that the specific roles, functions and interactions of the entities involved in manufacturing Defendants’ leather products – both within and outside the group of the Defendants – were not public knowledge. Therefore, the Defendants have a legitimate right and interest that their internal structure and operations are not used or disclosed outside the present proceedings by the Claimant.
The exact, product-specific design of the production of treated leather, the printing technologies and machines used and their setting were generally not known in the present case. Even though the Defendants might use machines openly available on the market, this fact did not exclude the potential and specific settings of these machines from at least probably being trade secrets. At least the aggregation of the various information together with the information about the machines which were used and the companies involved or not involved could probably be trade secrets.