INDIA Law and Practice Contributed by: Pravin Anand and Rohil Bansal, Anand and Anand
know trade secrets or confidential information, and knowledge of such facts cannot be labelled as trade secrets. In Ambiance India v Naveen Jain 2005 SCC OnLine Del 367, it was stated that written day-to-day affairs of employment that are in the knowledge of many and are commonly known to others cannot be called trade secrets. It was further held that in a business house the employees discharging their duties come across so many matters, but all these matters are not trade secrets or confidential matters or formulae, the divul - gence of which may be injurious to the employer; and if an employee on account of employment has learned certain business acumen or ways of dealing with the customers or clients, this does not constitute trade secrets or confidential information. In Konrad Wiedemann v Standard Castings [1985] (10) IPLR, the court relied on the observations in the Saltman Engineering case to note the following. “The information to be confidential must, I apprehend, apart from contract, have the necessary quality of confidence about it, namely, it must not be something which is public property and public knowledge. On the other hand, it is perfectly possible to have a con - fidential document, be it a formula, a plan, a sketch or something of that kind, which is the result of work done by the maker upon materials which may be avail - able for the use of anybody; but what makes it confi - dential 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.” In Indian Farmers Fertiliser v Commissioner of CE 2007 (116) ECC 95, the tribunal defined a trade secret as follows: “A trade secret is such sort of information, which is not generally known to the relevant portion of the pub - lic, that confers some sort of economic benefit on its holder and which is the subject of reasonable efforts to maintain its secrecy.” In Bombay Dyeing v Mehar Karan Singh 2010 (112) BomLR375, the Bombay High Court held that for
information to be classified as a trade secret the fol - lowing factors may be considered: • the extent to which the information is known out - side the business; • the extent to which it is known to those inside the business – ie, by employees; • the precautions taken by the holder of the trade secret to guard its secrecy; • the savings affected and the value to the holder in having the information against competitors; • the amount of effort or money expended in obtain - ing and developing the information; and • the amount of time and expense it would take oth - ers to acquire and duplicate the information. Recently, in HCL Technologies v Sanjay Ranganathan , order dated 27 July 2023 in CS (COMM) 502/2023, a former employee of the plaintiff copied certain infor - mation, which was personal and confidential to the plaintiff, into his own personal Gmail account. The court took a prima facie view that an employee of a company has no business to transfer into his per - sonal account any data of the company without the company’s permission. If such practice is permitted and issues of confidentiality are thereafter sought to be raised, this could be seriously prejudicial to the functioning of corporate enterprise. Furthermore, in Rochem Separation Systems v Nirtech Pvt Ltd Commercial IP Suit L No 29923/2022, the Bombay High Court passed an order dated 30 March 2023 stating that there have to be clear-cut, specific descriptions and data with the court pertaining to the information in which the plaintiff claims confidential - ity. In the absence of such clear-cut information and material, furnished by the plaintiff before the court, there would be no basis for examining the allegations levelled against the defendants, owing to the fact that the plaintiff had not placed on record the specifics of the confidentiality before the court. The High Court of Delhi in the case of Emergent Genetics India Pvt Ltd v Shailendra Shivam and Oth- ers , CS (OS) 50 of 2004 held that it is the “quality of confidence” that makes information eligible for legal protection as trade secret. The onus is on the owner of such confidential information or trade secret to prove
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