INDIA Law and Practice Contributed by: Pravin Anand, Achuthan Sreekumar and Rohil Bansal, Anand and Anand
government has invited comments and feed - back thereon from stakeholders. The new law is the first cross-sectoral law on personal data protection in India. Further, on 5 March 2024 the 22nd Law Com - mission of India issued a report titled “Trade Secrets and Economic Espionage” (LCR) to rec - ommend a new legal framework to adjudicate claims related to trade secrets, and also recom - mended a new law – ie, the Protection of Trade Secrets Bill, 2024. The Preamble of the Bill states it as “a bill to provide for effective protection of trade secrets against misappropriation so as to encourage innovation and fair competition” . 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 following conditions should be met, as held in Beyond Dreams Entertainment v Zee Enter - tainment Enterprises (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 disclose the information. Black’s Law Dictionary, 8th Edition defines trade secrets as “formula, process, device, or other business information that is kept confidential to maintain an advantage over competitors; infor- mation including a formula, pattern, compilation, program, device, method, technique or process
[…] that derives independent 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 reasonable efforts, under the circumstances, to maintain its secrecy” . The above definition was relied on by the Cal - cutta High Court in Tata Motors v State of WB; WP No 1773 of 2008. In Burlington Home Shopping v Rajnish Chib - ber; 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 competitor. 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 confi - dence is not allowed to use it as a spring-board for activities detrimental to the person who made the confidential communication, 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 con - fidential is dependent on several factors.
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