INDIA Law and Practice Contributed by: Pravin Anand and Rohil Bansal, Anand and Anand
1.2 What Is Protectable as a Trade Secret Whether certain information constitutes trade secrets depends on the facts of each case. For information to be given protection as a trade secret, it should be confidential in nature and should not be in the public domain. To protect certain information as confidential, the fol - lowing conditions should be met, as held in Beyond Dreams Entertainment v Zee Entertainment Enterpris- es (2016) 5 Bom CR 266: • the information must be confidential; • it must have been disclosed in circumstances from which an obligation of confidentiality arises; and • the confidant should be attempting to use or dis - close the information. Black’s Law Dictionary, 8th Edition defines trade secrets as a “formula, process, device, or other busi - ness information that is kept confidential to maintain an advantage over competitors; information includ - ing a formula, pattern, compilation, program, device, method, technique or process […] that derives inde - pendent economic value, actual or potential, from not being generally known or readily ascertainable by others who can obtain economic value from its disclosure or use, and […] that is the subject of rea - sonable efforts, under the circumstances, to maintain its secrecy”. The above definition was relied on by the Calcutta High Court in Tata Motors v State of WB WP No 1773 of 2008. In Burlington Home Shopping v Rajnish Chibber 1995 PTC (15) 278, the Delhi High Court held that a trade secret is information that would cause real or significant harm to the owner if disclosed to a com - petitor. This was also upheld in Linde v Kerr (1991) 1 All ER418. Therefore, trade secrets include not only secret formulae of product manufacturing but also, in appropriate cases, the names of customers and the goods which they buy. In Seager v Copydex (1967) 1 WLR 923, the court noted that “the essence of this branch of the law, whatever the origin of it may be, is that a person who
has obtained information in confidence is not allowed to use it as a spring-board for activities detrimental to the person who made the confidential communica - tion, and spring-board it remains even when all the features have been published or can be ascertained by actual inspection by any member of the public”. In LifeCell International v Vinay Katrela 2020 SCC OnLine Mad 15343, the Supreme Court referred to the decision in Hi-Tech Systems v Suprabhat Ray [2015 SCC OnLine Cal 1192], to hold that whether certain information is confidential is dependent on several factors. In Saltman Engineering v Campbell Engineering , reported at (1963) 3 All ER 413, the Court of Appeal held that the “confidential” information: “[M]ust not be something which is public property and public knowledge. On the other hand, it is per - fectly possible to have a confidential document, be it a formula, a plan, a sketch, or something of that kind, which is the result of work done by the maker on materials which may be available for the use of anybody; but what makes it confidential is the fact that the maker of the document has used his brain and thus produced a result which can only be produced by somebody who goes through the same process. A trade secret or a business secret may relate to a financial arrangement [or] the customer list of a trader and information in this regard would be of a highly confidential nature as being potentially damaging if a competitor obtained such information and utilised [this] to the detriment of the giver of the information. Business information such as cost and pricing, pro - jected capital investments, inventory marketing strat - egies and a customer’s list may qualify as his trade secrets. Similarly, business information, such as cost and pricing, projected capital investments, inventory marketing strategies and a customer’s list may also qualify as trade secrets.” In Navigators Logistics v Kashif Qureshi 2018 SCC OnLine Del 11321, the court, referring to Star India v Laxmiraj Seetharam , 2003 SCC OnLine Bom 27, held that everyone in any employment for a certain period would know certain facts and information without any special effort; such persons cannot be said to
67 CHAMBERS.COM
Powered by FlippingBook