The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
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2 ESSENTIAL AND NEED OF TRADE SECRET PROTECTION
Trade Secrets are Intellectual property rights that protect confidential information that can be sold or licensed. [i]Trade secret protection is an alternative to a patent or trademark which allows the intellectual property to remain undisclosed. A trade secret is virtually any information that is valuable because it is not generally and not readily ascertainable. The decisions for using the protection of trade secret law depend on the nature of the intellectual property. Unlike the defined time limit of other intellectual property rights, there is no definite time limit for trade secret protection.
This indefinite future protection of trade secrets is appealing if the intellectual property to protect is likely to remain generally unknown in the future. Intellectual property plays an important role in businesses and the economy as a whole. A trade secret can be anything like a recipe, manufacturing process, chemical formula, product design, marketing strategies, manufacturing techniques, and particular technology, etc. A trade secret plays a significant role in a business’s financial health and competitiveness. Trade secret law protects the information that makes a business or service unique in the market.
The Trade-Related Aspects of Intellectual property rights (TRIPS) agreement as the first international agreement to protect trade secret expressly. The motive behind the agreement was protection against unfair competition should include protection for undisclosed information. Article 39 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO) protects undisclosed information[ii]. To qualify as a trade secret three conditions mention below needs to be fulfill:-
The unauthorized acquisition of information that is protect by trade secret law with the use of unfair commercial practices willregarded as a violation of protection. The protection under trade secret law is necessary for the fair competition between the enterprises for satisfying the needs, demands, and interests of the consumer. The law ensures the fair functioning of the market and promotes innovation by discouraging anti-competitiveness behaviors.
India does not have any specific law regarding the protection of trade secrets, Indian courts grant the protection under various statutes like contract law, copyright law, and based on the principle of equity also sometimes decide on the basis of common law breach of confidence. Section 72 of the Information Technology Act, 2000 gives a penalty for breach of confidentiality and privacy but it is limit to electronic records. [iv]In case there is a violation of a trade secret protection some remedies are available to the trade secret owner. An injunction can be granted to a licensee or an employee for not disclosing a trade secret, an owner can ask for the return of all documents containing confidential information and compensation can be granted for the losses that have occurred due to the disclosure of the law.
In the case of Richard Brady v Chemical Process Equipment’s Pvt. Ltd [v]there was an agreement signed between the plaintiff and defendant concerning the supplies of thermal panels. The plaintiff has invented a fodder production unit and asked for the thermal panels from the defendant. The plaintiff shared the information and detail about know-how drawing and specification of a fodder production unit. The defendant did not even place an order and started his own fodder production unit with the help of all the information that has been given by the plaintiff. In this case, the court granted an injunction in the absence of a contract and considered the principle of equity.
In the case of Burlington Home Shopping Pvt. Ltd v Rajnish Chibber[vi]the Delhi court held that the business data, customers list, or compilation of business data can be given the protection of trade secret as well as copyright. Copyright protects the expression whereas this law protects the underlying data. The case was file against the employee for “breach of copyright and confidentiality” Here, the court that maintaining the compilation of the addresses by using time, skill and labor will treat as literary work, and hence interim injunction to the defendant for violation of copyright law.
In the case of Ritika Pvt Ltd v Biba Apparels Pvt. Ltd [vii] here the case was filed against the defendant for infringing the plaintiff’s clothing design. In order to get the injunction for the trade secret, it needs to proved that the plaintiff has ownership and it has been mentioned. It should have also proved that the information is confidential and reasonable steps have been taken by the plaintiff for protecting a secret. In the case it was not prove and the court did not consider granting an injunction with respect to the secret.
India is a signatory to the Trade-Related Aspects of Intellectual Property Rights (TRIPS). Which govern the protection and safeguards of a person’s intellectual property. India has approved the National Intellectual property Rights policy. Aims to incorporate and adapt global best practices to the Indian scenario. The current policies relating to Intellectual property are Compliant with the TRIPS agreement. One of the underlying objects of the Nation IPR policy is to enact a trade secret law in India. But no work has done to achieve the objective. At present, in India, the law is govern based on the principle of equity and common law principle of confidence.
[i] Trade secret, World Intellectual Property Organization (WIPO) (https://www.wipo.int/tradesecrets/en/) accessed on 4:00 P.m. on 12/17/2020
[ii] Art. 39, Trade-Related Aspects of Intellectual Property Rights (TRIPS), 1995
[iii] Schultz & Lippoldt, Approaches to the protection of Trade Secrets, OECD Trade Policy Paper No. 162, (2014)
[iv] Se. 72, Information Technology Act, 2000
[v] AIR 1987 Delhi 372
[vi] (61(1995)DLT6)
[vii] (Del HC DE 0784 2016)
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