INDIA Law and Practice Contributed by: Pravin Anand, Achuthan Sreekumar and Rohil Bansal, Anand and Anand
1. Legal Framework 1.1 Sources of Legal Protection for Trade Secrets The Indian legal system follows a common law system based principally on customs, prece - dents and legislation. India does not have a spe - cific statute or Act for protecting trade secrets. Trade secrets are protected through a series of precedents and legislation comprising various laws, such as: • the Patents Act, 1970; • the Trade Marks Act, 1999; • the Copyright Act, 1957; • the Designs Act, 2000; • the Geographical Indications of Goods (Reg - istration and Protection) Act, 1999; • the Plant Variety Protection and Farmer’s Rights Act, 2001; • the Biodiversity Act, 2002; • the Semiconductor Integrated Circuits Layout Designs Act, 2000; • the Information Technology Act, 2000; Being a signatory to the TRIPS Agreement, India is obligated under Article 39 to protect “undis- closed information” . Further, as Article 10bis of the Paris Convention and Article 39(2) to 39(3) of the TRIPS Agreement allows member states to have sui generis mechanisms, Indian courts have availed of common law principles to pro - tect such “undisclosed information” . The National IPR Policy, 2006 states in Objective 3.8.4 that protection of trade secrets is pivotal for strong and effective intellectual property (IP) laws to balance the interests of rights-owners with larger public interest. • the Indian Contract Act, 1872; • the Competition Act, 2002; and • the Bharatiya Nyaya Sanhita, 2023.
Trade secrets have been protected through vari - ous means, such as:
• constitution of confidentiality clubs; • non-disclosure agreements; and • other contractual obligations.
In the case of breach of such contractual agree - ment, the owner of trade secrets can bring an action for (among others): • specific performance; • the tort of misappropriation under common law; • criminal breach of trust; Therefore, trade secrets have been given the status of an equitable right. In Pawan Kumar Goel v Dr Dhan Singh and Another, CS (COMM) 672/2022, the Delhi High Court held that for - mation of a confidentiality club is necessary to facilitate access to commercially sensitive documents/information, as this is an effective approach for sharing sensitive information (such as a defendant’s trade secrets) while addressing confidentiality concerns. • theft; and • damages. The Indian government has been taking various measures to protect trade secrets, personal data, etc, while clearly noting the economic loss that can result from its leakage and misuse. In early August 2023, the Indian Parliament passed the Digital Personal Data Protection (DPDP) Act, 2023. Subsequently, draft subordinate legisla - tion in form of the Digital Personal Data Protec - tion Rules, 2025 was drafted to facilitate the implementation of the DPDP Act. This aims to strengthen the legal framework for the protection of digital personal data by providing necessary details and an actionable framework, and the
108 CHAMBERS.COM
Powered by FlippingBook