An organizer of trips to a certain country for a certain sport – this information is removed in the judgment – requested the HGer AG to superprovisionally prohibit a competitor from exploiting a customer file, in particular by addressing them by letter or electronically. The file had been sent to the competitor by a former agent of the applicant.
The HGer AG states in the Judgment HSU.2024.1 of January 3, 2024 first to the Trade secret within the meaning of Art. 6 UWG:
- A Trade secret is any fact that is of significance for the organization and business activities of a company and can therefore have an impact on its business results.
- A Secret exists if the facts in question are relatively unknown, i.e. they are neither public knowledge nor generally accessible. This is the case as long as the owner of the secret has the factual or legal possibility to control the dissemination of the information and the information cannot be obtained with little effort.
- If a company protects its internal network with a password, thereby ensuring that the data stored on the company server can only be viewed by a limited group of people and is therefore neither generally accessible nor public, this also ensures that the data is protected against unauthorized access. Willingness to maintain secrecy of the company; this data does not also have to be designated as “confidential”.
- In this case, all of this was the case. However, the intermediary was authorized to access the customer file – not also to exploit it, but the mere exploitation is not covered by Art. 6 UWG.
Art. 5 lit. b UWG (Utilization of third-party services) – not asserted, but examined by the AG Court – was then not relevant because the customer file had been set up by the intermediary together with the applicant.