Protection of Trade Secrets and Know-how

Not all valuable knowledge can – or should – be registered as a patent or design: recipes, manufacturing processes, customer data, calculations and algorithms live on secrecy. Turkish law has no uniform trade secrets act modelled on the EU Know-how Directive; protection results from an interplay of unfair competition law (Commercial Code), employment law, general civil law and criminal law. Precisely for that reason: the most effective trade secret protection in Turkey is built by the company itself – contractually and organisationally.

Table of contents

• What is a trade secret?
• Which statutory protection instruments exist?
• How are secrets protected in the employment relationship?
• How does the NDA protect secrets vis-à-vis business partners?
• What criminal law protection exists?
• How are claims enforced and evidence secured in a dispute?
• How are secrets protected in M&A and cooperation processes?
• How is trade secret protection implemented organisationally?
• How does a typical trade secret betrayal case unfold?
• How does trade secret protection succeed in practice? A recent decision of the Court of Cassation
• Conclusion

What is a trade secret?

Under Turkish case-law and doctrine, trade secrets are understood as information that is not generally known or readily accessible, whose secrecy has economic value for the company, and in respect of which the holder shows a recognisable intention of secrecy and takes appropriate protective measures. Covered are technical information (processes, recipes, source code, prototypes) as well as commercial information (customer lists, terms, strategies, calculations). The third criterion is decisive in practice: whoever does not demonstrably protect its information – through confidentiality agreements, access restrictions and marking – will hardly be able to enforce it as a secret in a dispute.

Which statutory protection instruments exist?

The core of civil protection is the unfair competition law of Articles 54 et seq. of the Commercial Code No. 6102: deemed unfair are in particular the exploitation of another's work products such as offers, calculations and plans, the inducement of employees and agents to betray secrets, and the exploitation and disclosure of unlawfully obtained trade secrets. Those affected have actions for declaration, injunctive relief and removal as well as claims for damages and moral damages; preliminary relief is also available. In addition, the general rules on tort and – within contractual relationships – liability for breach of contract apply. Software and database components may additionally enjoy copyright protection, technical solutions patent protection; trade secret protection fills the gaps between the registered rights.

How are secrets protected in the employment relationship?

During the employment relationship, employees are bound by statutory duties of loyalty and confidentiality (Article 396 of the Code of Obligations); the disclosure of production and business secrets can moreover justify summary dismissal. After termination, the statutory confidentiality continues to the extent necessary to protect the employer's legitimate interests – its scope, however, is ill-defined, which is why express contractual confidentiality clauses are indispensable: with a definition of the protected information, unlimited duration for genuine secrets, surrender and deletion duties upon departure, and a reasonable contractual penalty. For key personnel, the post-contractual non-compete covenant is an additional option, subject to its own strict validity requirements and described in the separate article. Of practical importance is the distinction from the employee's general experiential knowledge, which the employee may take along – the more precisely the secret is documented, the better this distinction succeeds.

How does the NDA protect secrets vis-à-vis business partners?

In negotiations, development cooperations, supply relationships and M&A processes, the non-disclosure agreement (NDA) is the central instrument. Effective and customary under Turkish law are in particular: a precise description of the confidential information and the permitted purposes, disclosure restrictions to need-to-know recipients with onward obligations, standard exceptions (publicly known, lawfully obtained, independently developed information), duration and return rules, and contractual penalties, since concrete proof of damage is regularly difficult in secrecy breaches; excessive penalties are, however, subject to judicial reduction. For unilaterally imposed clauses, the general-terms content review of the Code of Obligations must be observed. In supply and manufacturing agreements with Turkish producers, NDAs should always be combined with provisions on tooling, moulds and drawings and a prohibition of side production ("no side production").

What criminal law protection exists?

The Turkish Criminal Code penalises the disclosure of trade secrets, banking secrets and customer information by persons who obtained them by virtue of their position or profession (Article 239); prosecution requires a criminal complaint. Added to this are the IT offences – unauthorised intrusion into data processing systems, data alteration and interception – and, for physical documents, the offences of theft and breach of trust. The criminal route can be pursued in parallel with civil proceedings and, through the prosecutor's investigative instruments – search, seizure of data carriers, digital forensics – not infrequently provides the decisive access to evidence.

How are claims enforced and evidence secured in a dispute?

The typical case – a departed employee takes customer lists or engineering data to a competitor – demands fast, coordinated action: forensic preservation of the company's own systems (e-mail exfiltration, USB logs, cloud access), civil evidence preservation and a preliminary injunction against the user and the new employer, and a criminal complaint where appropriate. A structural problem is secrecy protection within the proceedings themselves: Turkish procedural law has no comprehensive "in camera" procedure on the EU model; however, through confidentiality applications, restrictions on file inspection and the targeted preparation of the expert evidence, disclosure in the proceedings can be managed. For this reason too: contractual penalties and clear contractual prohibitions reduce the burden of proof and are the best procedural lever.

How are secrets protected in M&A and cooperation processes?

Secrets are particularly exposed in transaction and cooperation initiations, where sensitive information is disclosed precisely to potential competitors. A proven protective architecture: an up-front NDA already for opening discussions; staged disclosure in the data room according to transaction progress, with the most sensitive information – customer terms, recipes, price calculations – accessible only shortly before signing and, where appropriate, only to a clean team of external advisers; competition-law-compliant handling of competitively sensitive data between competitors; and return and deletion undertakings with confirmation duties for the break-up scenario. If the transaction fails, the documented access history of the data room is the central piece of evidence should information later surface at the counterparty. The same principles apply to development cooperations and tenders in which bid calculations and technical concepts are disclosed.

How is trade secret protection implemented organisationally?

• Identification and classification: name the crown jewels, introduce confidentiality levels and marking
• Technical measures: need-to-know access concepts, logging, DLP systems, encryption, controlled data rooms in projects
• Contractual safeguards: NDA standards for employees, applicants, consultants, suppliers and cooperation partners; chains of obligation for subcontractors
• Onboarding and offboarding processes: instruction at hiring, exit interviews with surrender and deletion confirmations, blocking of access on the last day
• Response plan: predefine responsibilities, forensic service providers and legal escalation for suspected cases

How does a typical trade secret betrayal case unfold?

The standard betrayal case: the long-serving sales director moves to a competitor; shortly afterwards, key customers receive strikingly well-tailored counter-offers. Forensic analysis shows that in his final weeks he forwarded customer lists and price calculations to his private e-mail address and copied them onto a USB stick. The coordinated response: preservation of the logs and devices within the limits of the KVKK; a warning letter to the former employee and – based on unfair competition law – to the new employer; an application for evidence preservation and a preliminary injunction against the use of the data; a criminal complaint under Article 239 of the Criminal Code; enforcement of the contractual penalty under the employment contract. Decisive for success is the groundwork done in calm times: the signed confidentiality clause with a contractual penalty, the documented classification of the customer data as confidential and the IT logging that makes the outflow provable. If one of these elements is missing, the case shifts from legal enforcement to difficult circumstantial evidence.

How does trade secret protection succeed in practice? A recent decision of the Court of Cassation

The decision of the Court of Cassation (11th Civil Chamber, E. 2024/273, K. 2024/8412) is an important precedent for the protection of trade secrets: after his departure, the defendant had published engineering drawings, price information and employee data of the claimant company on the internet and had also forwarded the documents to his private e-mail account. The Court of Cassation qualified these acts as unfair competition under Articles 54 and 55 of the Turkish Commercial Code. The disclosure of trade secrets not only damages the economic interests of the company but also disrupts the competitive order of the market – the courts therefore emphasise that employees' confidentiality duties continue after the end of the employment relationship.

The trade-secret-related outcome of the decision strengthens companies' duty to protect their know-how and confidential information: employees transferring such information to private accounts or publishing it on the internet is deemed trust-destroying and anti-competitive conduct. The judgment underscores how important it is to include confidentiality clauses expressly in employment contracts and to take legal action quickly in the event of violations – securing trade secret protection both in the individual employment relationship and in the market order.

To prevent employees from exploiting the secrets after their departure, post-contractual non-compete covenants and express confidentiality clauses should moreover be included in employment contracts; such provisions protect the employer's trade secrets and at the same time make the employees' legal responsibility transparent. We support companies comprehensively at this point – from the drafting and implementation of the contracts to swift legal action in the event of infringement.

Conclusion

Trade secret protection in Turkey rests on a mosaic of unfair competition, contract, employment and criminal law – without a uniform special statute. The court protects only what the company itself has recognisably protected: documented secrecy measures, precise NDAs with contractual penalties and clean exit processes are therefore not a formality but the actual basis of the claim.

In the event of infringement, speed decides: forensic evidence preservation, preliminary relief and, where appropriate, the criminal complaint should be initiated in coordinated fashion within the first days. Companies with Turkish manufacturing and development partners should moreover extend their secrecy protection contractually across the entire supply chain.

The IP/IT team at GEMS Schindhelm advises companies on building their trade secret protection, drafts confidentiality and know-how agreements, and enforces claims in cases of secret betrayal under civil and criminal law.