Owner of a beauty salon successfully obtains an injunction against her former freelance employee (a physician)
In preliminary injunction proceedings conducted by attorney Florian Daniel on behalf of the petitioner before the Berlin Regional Court, the former independent contractor (the respondent) was prohibited from poaching the petitioner’s clients by exploiting her knowledge of scheduled treatment appointments and/or, on the occasion of the respondent’s move to a competing business, actively calling the petitioner’s clients or having them called in order to redirect them to the respondent’s new place of business (for a future treatment appointment).
Facts of the Case
The petitioner operates a beauty salon with multiple locations in Berlin. The respondent worked there as a freelance physician.
At short notice, the respondent terminated her employment and, as it subsequently transpired, assumed a managerial position at a direct competitor.
In connection with the change in place of work, the petitioner – both personally and through another employee whom the petitioner had also terminated “out of the blue” and who subsequently – as it turned out – also obtained a prominent position at the competing beauty salon – rescheduled the petitioner’s clients.
In doing so, the respondent made use of the petitioner’s APPOINTMENT DATABASE. Specifically, the respondent contacted – either directly or through the other employee – clients who had already scheduled a treatment appointment, with the aim of redirecting them to the new location.
Furthermore, the respondent made use of the applicant’s CUSTOMER DATABASE, as she also contacted customers who were expected to have another treatment appointment in the (near) future. This customer data could only have been obtained from the relevant database, as the respondent contacted customers with whom she had never had any personal contact prior to this, even during her time as a (freelance) contractor.
Decision
The Berlin Regional Court issued the preliminary injunction as requested, without a hearing, despite the protective brief filed by the respondent’s authorized attorneys.
In its reasoning, the Berlin Regional Court stated, among other things, that
“the respondent’s actions—which have been credibly established – of rescheduling clients whose treatment appointments had already been arranged with the petitioner to the new clinic where she was working constitute an unlawful exploitation of the petitioner’s trade secrets. This is self-evident and requires no further justification. The applicant’s CLIENT APPOINTMENTS are its TRADE SECRETS (…)”
It could be left open in this case whether the respondent would have been entitled, in the course of her work for the petitioner, to inform her clients there that she would soon be employed elsewhere. For that is precisely not what is at issue here with the rescheduling of clients by exploiting knowledge of the agreed-upon appointments.
Likewise, the request to other clients of the plaintiff – who had not previously been treated by the defendant – to now seek treatment at the defendant’s new practice (also) clearly constitutes the unlawful and unauthorized use of the plaintiff’s trade secrets.
The respondent’s affidavit, submitted in part as part of the protective brief, was unable to undermine the applicant’s prima facie case simply due to its lack of factual substance. The respondent’s further arguments regarding the issue of poaching employees were irrelevant because such conduct was not the subject of the motion for a preliminary injunction.
Comment
This decision has once again demonstrated how important trade secrets are to a company and how worthy they are of protection. Know-how and, in particular, a customer base that has in some cases been built up over many years are assets of a company that must be protected against unauthorized access and unlawful exploitation!
In assessing the value of the claim for injunctive relief, the primary determining factor is the economic interest of the party seeking the injunction (= the petitioner) in the enforcement of the claim. This interest must be determined based on the severity (the “risk factor”) of the act to be prohibited, as indicated by the impending harm. It depends, among other things, on the effects of future infringing acts (scope, intensity, and frequency, as indicated by the infringing act already committed), the intensity of the risk of repetition (degree of fault, subsequent conduct, obligations to refrain from infringing acts toward third parties), and the risk of imitation.
The Berlin Regional Court determined the value in dispute at its discretion pursuant to Section 3 of the German Code of Civil Procedure (ZPO) by way of estimation at EUR 40,000.00 in the preliminary injunction proceedings, which is 2/3 of the value of the main action amounting to EUR 60,000.00.
Do you suspect that your (freelance) employee is betraying you?
Are you concerned that trade secrets are being “stolen” from you and unlawfully exploited?
Would you like to know what constitutes “trade secrets” and how they can be protected?
I’d be happy to advise you—please contact me; I’d be glad to take on your case.