INDIA Law and Practice Contributed by: Pravin Anand, Achuthan Sreekumar and Rohil Bansal, Anand and Anand
• return of all confidential and proprietary infor - mation; and • compensation for any losses suffered owing to disclosure of such trade secret. As opined by courts in India and by the Supreme Court in Kashi Math v Sudhindra; AIR 2010 SC 296, it is well established that, in order to obtain preliminary injunctive relief, the party seeking the granting of such an order has to prove that: • they have made out a prima facie case for trial; • the balance of convenience is in their favour; and • they will suffer irreparable loss if the injunc - tion is not granted. The purpose of passing injunctive relief is to ensure that evidence is not destroyed and that further damage to the plaintiff is prevented. Usually, when the court passes preliminary injunctive relief, it is valid till such time as the matter is finally argued or till the court vacates or modifies it. Also, if the injunctive relief is con - tingent on certain other facts, it can vary accord - ingly. In a straightforward civil case involving trade secrets and confidentiality, under normal cir - cumstances there is no need for the claimant to post a bond. 7.2 Measures of Damages The following damages can be claimed in a trade secrets case: • actual/compensatory – based on actual loss caused to the plaintiff and actual profits made by the defendant from misappropriation;
• punitive/exemplary – to set an example for other wrongdoers; and • aggravated damages – on account of the extreme mala fide actions of the defend - ant, especially when actual/compensatory damages are disproportionately dwarfed in comparison to the actual amount recoverable by the plaintiffs. The principles governing proof of actual dam - ages, aggravated damages and punitive dam - ages in IP disputes are enshrined in the decision of Hindustan Unilever v Reckitt Benckiser, 2014 (57) PTC 495 [Del] [DB]. This was further upheld in Koninlijke Philips v Amazestore CS (COMM) 737 of 2016. The court also noted that the dam - ages should be granted based on the degree of mala fide conduct. 7.3 Permanent Injunction A permanent injunction will be granted if a claim - ant is successful in their civil action. If it is practically possible for the defendant to recall a product, the court may pass an order directing recall. In a typical case, there is no limi - tation on the duration of a permanent injunction, and the defendant is injuncted for all times to come. It is not possible to limit an employee’s subse - quent employment in most cases. As observed in the Star India case, any person in any employ - ment for a certain period would acquire knowl - edge of certain facts without any special effort. The courts in Ambience India and in Krishna Murgai v Superintendence Co; AIR 1979 Del 232 held that an employee – particularly after the cessation of their relationship with their employ - er – is free to pursue their own business or to seek employment with someone else. However,
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