Luring clients away from competitors is an essential element of the free market and permissible in principle. Only under special circumstances can luring clients away from competitors be held to be unfair and therefore represent a violation of Sec. 4 (4) UWG [Gesetz gegen den unlauteren Wettbewerb, German Law against Unfair Competition] (“targeted obstruction”) (cf. Köhler/Bornkamm/Feddersen, “Gesetz gegen den unlauteren Wettbewerb,” 36th ed., re Sec. 4, Sec. 4.32 ff.). In particular, it is deemed unfair to lure away clients by using unlawfully obtained client lists. Client lists are classified as business secrets of a company. Anyone who, as an employee of a company, obtains, secures, utilises or discloses to a third party a business secret without authorisation violates Sec. 17 UWG and becomes liable to prosecution.
In contrast, employees may use the knowledge and know-how acquired in a previous position in their new employment. According to a general rule of thumb, employees may make use of knowledge from a previous job that they have memorised. The undersigned was involved with a case some time ago in which the employee who had left wrote an email to 200 customers of his previous employer. During the litigation that followed, the former employee defended himself by alleging that he had the email addresses “memorised.” The presiding judge asked him during a hearing to list off those email addresses. When the defendant was not able to get very far, the court deemed his defence not credible and the former employee was ordered to cease and desist.
If a previous employer wants to take action against a former employee who has violated Sec. 17 UWG, it should be noted that this involves litigation “arising from the employment relationship.” As a consequence, legal action against a former employee is not heard by an ordinary court but rather by a labour court, Sec. 2 (3) (a) Labour Court Act [Arbeitsgerichtgesetz]. If a former employee uses a business secret obtained without authorization, such as a customer list, in their new employment (which tends to occur often enough), action can also be taken against the new employer pursuant to Sec. 4 (4) and Sec. 8 (1) UWG; the new employer will also be held accountable for violations by the former employee pursuant to Sec. 8 (2) UWG. Litigation against the new employer is then heard by the regional court, Sec. 13 UWG.
In the matter that was decided by the Schleswig-Holstein Regional Labour Court, the previous employer had a specific suspicion that the employee who left had obtained customer lists and other documents without authorisation. He filed a criminal complaint on October 26, 2016, pursuant to Sec. 17 (5) UWG, which led the competent prosecutor’s office to conduct a search of the former employee’s house, where copies of customer lists from the previous employer were indeed found. After an unsuccessful warning, the former employer filed a motion for an injunction on December 15, 2016, i.e., about 7 weeks after the criminal complaint, with the competent labour court, which in turn dismissed the motion. The Schleswig-Holstein Regional Labour Court finally issued the interim injunction that had been requested and cited as the reason for its order its view that waiting about 7 weeks after the criminal complaint did not prejudice the urgency of the matter. The court held that the issues in the case were complex and the moving party could reasonably wait to see if the prosecutor’s office would initiate more investigations, in particular if a house search and confiscation of documents would occur. If the motion for an interim injunction had been made prematurely, the respondent would have been warned and could possibly have destroyed evidence before his premises were searched.
Other courts, such as the Munich Regional Court 1, require that a motion for an interim injunction be filed within one month of acquiring the pertinent knowledge. If this deadline is not met, the case is not deemed urgent and the motion to issue an interim injunction will be dismissed for that reason. Former employers who want to take the route of an interim injunction should therefore act as quickly as possible and not count on other courts to share the view of the Schleswig-Holstein Regional Labour Court that waiting 7 weeks does not prejudice the urgency of the matter.
