Which is better NIT or NDA

Why Nondisclosure Agreements Are Important (Part 1)

A nondisclosure agreement, often also referred to as a nondisclosure agreement or NDA (non-disclosure agreement), is a type of contract of central importance in operational practice. This applies, on the one hand, to negotiations on patents in the licensing process, as well as to trade secrets in the case of takeovers or mergers of companies. On the other hand, it also applies to IT companies that have set the focus of their activities in the area of ​​software development. Such a contractual agreement is intended in particular to ensure the confidential treatment of sensitive information about contractual negotiations, technical information and other data of technical or economic value.

A nondisclosure agreement is much more than the often cited annoying confidentiality agreement that you just sign and whose meaning and effects of its violation are often not recognized. Rather, important assets of your own company can be protected with confidentiality agreements and you can still talk to the (potential) contractual partner in plain language, which is precisely what is important. If you want to win a project. How else can I convince a client that you are the right man if you don't explain to him what you do differently and better than your competitors.

Scope and demarcation from protection under competition law

The purpose of a confidentiality agreement is to protect business and trade secrets from unauthorized publication and / or unauthorized disclosure to third parties by the business partner. This protection is always of particular importance when valuable information for assessing the economic benefit of a cooperation is given by the - possibly - future contractual partner to the sphere of the negotiating partner, without it being certain that a later business relationship will be entered into.

The central concept of trade secrets includes all facts that are related to a business operation, known only to a narrowly limited group of people, i.e. not obvious and, according to the stated or recognizable will of the business owner, should be kept secret due to a legitimate interest. This protection is already legally ensured to a certain extent by §§ 17 ff. UWG. Any unauthorized publication or disclosure of business and trade secrets contrary to the agreement is threatened with fines and imprisonment as a result of these provisions of competition law.

In addition to this - under criminal law - protection of business and trade secrets, there is also regular civil law protection of sensitive information that is disclosed in the course of contract negotiations.

In such cases, the courts derive the duty of confidentiality - in spite of the lack of an express agreement - from the specific circumstances of the contractual negotiations, i.e. if the will and the legitimate interest of the negotiating or contracting partner can be easily recognized due to the sensitive nature of the information provided is. In this context, a confidentiality obligation due to a so-called “pre-contractual obligation” will often have to be assumed even before the final conclusion of the contract.

Nevertheless, in many cases an express confidentiality agreement is necessary or at least legally and actually very useful. In the absence of a contractual arrangement, the injured party is dependent on the one hand on the fact that the court sees the other party as having an obligation to maintain secrecy and on the other hand it must be possible to prove a violation. In order to facilitate this demonstration, it is of crucial importance that the exact scope of the confidentiality obligation is transparent and comprehensible in order to be able to pinpoint a violation based on hard facts. Incidentally, this is the only way to avoid an unwanted and surprising interpretation of the specific content of the contract by the respective court and the judges there. Many a judge has surprised both parties with his interpretation of the contract.

Finally, both in connection with the aforementioned protection under competition law according to Sections 17 et seq. UWG, as well as with regard to the enforcement of civil law claims, it is necessary that the will to maintain secrecy is recognizable for the business partner, which can be ensured by submitting a specific non-disclosure agreement can be proven without problems.

In order to be able to achieve these goals - i.e. a confidentiality agreement that withstands judicial review - the essential content is presented below, which is necessary in most cases or at least recommended from a legal point of view.

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Contact: [email protected]
Status: May 28, 2008

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The competition law department at Brennecke & Partner Rechtsanwälte is supervised by:

 Harald Brennecke, attorney, specialist attorney for intellectual property law

Attorney Harald Brennecke advises and represents as a specialist attorney for industrial property protection in the case of violations in the area of ​​unfair competition, be it in the out-of-court area of ​​warnings and closing letters, in the area of ​​temporary injunctions or in main court proceedings and fends off unjustified warnings. He negotiates contractual penal agreements to eliminate the risk of repetition between infringers and injured parties.
He checks advertising appearances and measures such as websites, online shops, company appearances, brochures and terms and conditions for anti-competitive content in order to avoid warning risks.
Lawyer Brennecke advises entrepreneurs on the protection of their business secrets and customer data. He is active in the field of UWG criminal offenses as a criminal defense lawyer and in the investigation and documentation of criminal offenses and the creation of criminal reports, including criminal advertising, 16 UWG or betrayal of business secrets, 17 UWG, such as the unauthorized use of customer data.

Harald Brennecke has published in:

  • "Competition Law - Introduction to the Law of Unfair Competition and the UWG", Harald Brennecke and Florin Brückner, 2010, Verlag Mittelstand und Recht, ISBN 978-3-939384-12-0.
  • "17 UWG - betrayal of trade and business secrets", 2015, ISBN 978-3-939384-38-0, Verlag Mittelstand und Recht
  • "Copyright - an introduction", by Harald Brennecke and Simon Hofmann, 2011, Verlag Mittelstand und Recht, ISBN 978-3-939384-23-6
  • "License law - an introduction. License types and license agreements." By Harald Brennecke and Florin Brückner, 2010, Verlag Mittelstand und Recht, ISBN 978-3-939384-08-3
  • "Trademark law - an introduction to trademark forms, trademark protection and trademark registration", Harald Brennecke and Florin Brückner, 2010, Verlag Mittelstand und Recht, ISBN 978-3-939384-22-9

Further publications by Harald Brennecke are in preparation, including on the subject

Harald Brennecke is a lecturer in competition law, copyright law and licensing law at the DMA Deutsche Mittelstandsakademie.
It offers training courses, lectures and seminars on the following topics, among others:

  • Protection of customer addresses and trade secrets - 17 UWG in theory and practice
  • Strategic alignment of companies from a competition law perspective
  • Brand protection strategies as a business instrument
  • Make online shops legally secure
  • Drafting license agreements
  • The used software purchase
  • Sales licenses in law and practice

Contact attorney Harald Brennecke, specialist attorney for intellectual property law, at:
Mail: [email protected]
Phone: 0721-20396-28


We ask for your understanding that we cannot provide legal advice free of charge.