Introduction
In today’s world almost every person knows what intellectual property is and protection of intellectual property has become a matter of paramount importance for every person involved with intellectual property. Patents, trademarks and copyrights have been the most popular forms of intellectual property till now but there are more forms of intellectual property which are gaining importance in the past few decades, designs and geographical indications being the most popular of them. A still new form of intellectual property which has gained recognition in the past two decades is Trade secrets and it is this form of IP with which we are concerned here.
What is a Trade Secret?
Trade secrets are intellectual property (IP) rights on confidential information which may be sold or licensed. In general, to qualify as a trade secret, the information must be:
- commercially valuable because it is secret,
- be known only to a limited group of persons, and
- be subject to reasonable steps taken by the rightful holder of the information to keep it secret, including the use of confidentiality agreements for business partners and employees.
The unauthorized acquisition, use or disclosure of such secret information in a manner contrary to honest commercial practices by others is regarded as an unfair practice and a violation of the trade secret protection.
Protection of Trade Secret in India
Depending on the legal system, the legal protection of trade secrets forms part of the general concept of protection against unfair competition or is based on specific provisions or case law on the protection of confidential information.
While a final determination of whether trade secret protection is violated or not depends on the circumstances of each individual case, in general, unfair practices in respect of secret information include breach of contract breach of confidence and industrial or commercial espionage.
A trade secret owner, however, cannot stop others from using the same technical or commercial information, if they acquired or developed such information independently by themselves through their own R&D, reverse engineering or marketing analysis, etc. Since trade secrets are not made public, unlike patents, they do not provide “defensive” protection, as being prior art. For example, if a specific process of producing Compound X has been protected by a trade secret, someone else can obtain a patent or a utility model on the same invention, if the inventor arrived at that invention independently.
Remedies offered to the Holder of Secret Information
Most countries provide for remedies in criminal, administrative, commercial and/or civil law, in particular, tort law, contractual law and specific legislation on unfair competition.
In general, a trade secret owner can collect damages from the person who violated the trade secret for the economic injury suffered. The trade secret laws of some countries might also permit the use of injunctions, which requires the cessation of the use of any products that have been created through the use of trade secret information contrary to honest commercial practices. In some countries, for particular cases of trade secret violation, criminal penalties are available.
International Protection of Trade Secrets
Trade Secrets have been provided protection by a large number of agreements and countries throughout the world. While the conditions for trade secret protection vary from country to country, some general standards on trade secret law are found in Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).
The TRIPS makes it obligatory on member states to ensure Protection of Undisclosed Information under Article 39 of the Agreement.
The TRIPS Agreement also requires member countries to provide effective remedies for trade secret misappropriation including (a) injunctive relief (b) damages and (c) provisional relief to prevent infringement and to preserve evidence.
Conclusion
The Centre for Internet and Society has been researching privacy rights in India since 2010 with the objective of raising public awareness around privacy, completing in depth research, and driving privacy legislation in India. In India the Personal Data Protection Bill, 2019, has not been passed yet. Both industry and government felt that the absence of law tailored to provide privacy protections was detrimental on the international stage and within India as well. If the Bill is passed, then it will put Indian laws on a similar footing to those in developed markets, especially the EU, the UK, and the US. The PDP clearly draws on the GDPR as a starting point with features similar to its Data Protection Authority implementation, breach disclosure rules, and penalty regime.
Foot Notes
- http://www.unil.ch/files/live//sites/cedidac/files/shared/Articles/Protection% 20Trade%20Secrets.pdf
- http://www.investopedia.com/terms/m/misappropriation_ theory.asp
- https://prsindia.org/billtrack/the-personal-data-protection-bill- 2019#:~:text=The%20Personal%20Data%20Protection%20Bill%2C%20201 9%20was%20introduced%20in%20Lok,Protection%20Authority%20for%20t he%20same.
- AIR 1979 Delhi 232
- https://www.wipo.int/tradesecrets/en/tradesecrets_faqs.html
