INDIA Law and Practice Contributed by: Pravin Anand, Achuthan Sreekumar and Rohil Bansal, Anand and Anand
the public, 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 following factors may be considered: • the extent to which the information is known outside 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 com - petitors; • the amount of effort or money expended in obtaining and developing the information; and • the amount of time and expense it would take others to acquire and duplicate the informa - tion. Recently, in HCL Technologies v Sanjay Ranga - nathan, order dated 27 July 2023 in CS (COMM) 502/2023, a former employee of the plaintiff cop - ied certain information, 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 personal account any data of the company without the company’s permission. If such practice is permitted and issues of confi - dentiality 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 confidentiality. In the absence of such clear-cut information and mate - rial, furnished by the plaintiff before the court, there would be no basis for examining the alle - gations levelled against the defendants, owing to the fact that the plaintiff had not placed on record the specifics of the confidentiality before the court. 1.3 Examples of Trade Secrets Please see 1.2 What Is Protectable as a Trade Secret . 1.4 Elements of Trade Secret Protection There is no codified law in India defining the elements of trade secret protection. The Bom- bay Dyeing case (supra) identifies the elements essential for information to be classified as a trade secret, as detailed in 1.2 What Is Protect- able as a Trade Secret . Various judgments have unanimously laid down that the quality of confidentiality makes the information eligible for legal protection as a trade secret. It is very important for the owners of confidential information to show that reason - able efforts were expended by them to maintain secrecy. If such efforts cannot be proved, the owners risk losing the quality of confidence even if such information is obtained by third parties without permission. An important element for confidential informa - tion to be categorised as a trade secret is an obligation on any other person who receives it to maintain its secrecy, if they have received it with the knowledge of obligation of confidence.
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