INDIA Law and Practice Contributed by: Mohit Goel, Sidhant Goel, Aditya Goel and Mehr Bajaj, Sim and San, Attorneys at Law
• disclosure under an obligation of confidence; and • actual or threatened unauthorised use causing detriment. Public domain information and an employee’s general skill, knowledge and experience are not protectable. 5.2 Reasonable Measures and Confidentiality Indian courts require trade secret owners to clearly identify the confidential information and demonstrate reasonable measures to preserve secrecy. In Navigators Logistics Ltd . v Kashif Quresh i and Rochem Separation Systems v Nirtech , relief was refused where plaintiffs failed to specifically identify trade secrets or show adequate safeguards beyond generic confidentiality clauses. Reasonable measures
tiality obligations and the nature of access granted. Indian courts routinely grant injunctions to restrain misuse of trade secrets, customer lists, technical know-how and proprietary business information. 5.4 Duration and Loss of Protection Trade secret protection has no fixed term in India. It subsists as long as the information retains commer- cial value, remains reasonably confidential, and has not entered the public domain. Protection may be lost through: • voluntary disclosure; • independent discovery by a third party; • reverse engineering of a commercially available product (absent contractual restriction); • inadvertent publication; or • entry of the information into the public domain through court proceedings. Once a secret is in the public domain, protection cannot be revived. Accidental disclosure to a limited audience does not automatically destroy protection if reasonable steps are taken promptly to prevent further dissemination. 5.5 Enforcement and Remedies India provides robust trade secret enforcement through commercial litigation, despite lacking a dedi- cated trade secrets statute. Actions are generally brought before Commercial Courts and increasingly before High Courts’ IPDs, which follow expedited pro- cedures. Civil remedies include: • interim and permanent injunctions (including ex parte relief); • the delivery-up or destruction of confidential mate- rials; • the appointment of Local Commissioners to pre- serve evidence; • damages; • account of profits; • punitive damages in appropriate cases; and • recovery of litigation costs.
include: • NDAs; • confidentiality obligations; • access controls; • document marking; • return-of-property procedures; and • technological safeguards.
Disclosure to employees, contractors or business partners does not destroy protection if made under an express or implied duty of confidence, as recognised in Diljeet Titus v Adebare . Conversely, HCL Technolo- gies v Sanjay Ranganathan reaffirmed that unauthor- ised transfer of confidential data, even to a personal email, may constitute breach of confidence. 5.3 Misappropriation of Trade Secrets India does not have a standalone trade secrets stat- ute. Protection is derived from contractual obliga- tions, equitable principles, common law duties of confidence and, in appropriate cases, provisions of the Information Technology Act, 2000. Misappropriation generally occurs where confidential information is acquired, disclosed or used without authorisation, in breach of contractual, fiduciary or equitable obligations. Courts distinguish between pro- tectable confidential information and an employee’s general skill, knowledge and experience. Employee and joint venture disputes typically turn on confiden-
123 CHAMBERS.COM
Powered by FlippingBook