INDIA Law and Practice Contributed by: Pravin Anand, Achuthan Sreekumar and Rohil Bansal, Anand and Anand
al obligation to maintain secrecy, they are duty- bound to ensure that secrecy is maintained. Controlled disclosure will depend on the terms and circumstances under which the disclosure was made – ie, on: • what control the claimant exercises while making disclosure; • what amount of information was given and retained; and • the understanding of the parties as regards such information. In the event of accidental disclosure, the infor - mation loses the attribute of secrecy and ceases to be a trade secret. A rights-owner of such confidential information can approach the courts in India for prohibitive reliefs against persons who without authorisa - tion acquire such information. The courts will only pass prohibitive orders if it is shown that the defendant obtained the confidential informa - General principles of contract law in India gov - ern the licensing rights of an owner of a trade secret. They may license them to any party on any agreed-upon terms, subject to the condition that the agreement should not be contrary to the law of the land. As per Section 10 of the Indian Contract Act, all agreements are contracts if they are made with the free consent of parties com - petent to contract, for a lawful consideration and with a lawful object. tion fraudulently. 1.10 Licensing For the sake of caution, the owner may enter into an NDA with the licensee to ensure that the lat - ter is under a contractual obligation to maintain secrecy as regards such trade secrets that have
been handed over to them in confidence, and such NDAs may be built into the licence agree - ment to make it watertight. The main objective is to ensure that trade secrets are handed over to the licensee under circum - stances implying trust or confidence as regards their non-disclosure or unauthorised use. 1.11 What Differentiates Trade Secrets From Other IP Rights IP rights in India are protected under various codified statutes or acts (see 1.1 Sources of Legal Protection for Trade Secrets ). Trade secrets, on the other hand, are not protected through a codified statute but through contract law or the equitable doctrine of breach of con - fidentiality. IP rights have specified terms of protection as per the following statutes. • Section 23 of the Copyright Act – the term of copyright for a work published anonymously is 60 years from the beginning of the calen - dar year following the year in which the work was first published. For a work concerning a disclosed author, the period is 60 years from the death of the author. • Section 53 of the Patents Act – the term of every granted patent is 20 years from the date of filing of the application for the patent. • Section 25 of the Trade Marks Act – the reg - istration of a trade mark is valid for a period of ten years, and thereafter may be renewed from time to time. • Section 11 of the Designs Act – a design registration is valid for ten years, and may be extended for another five years. However, for a trade secret, the rights of its own - er persist so long as its secrecy is maintained.
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