Trade secrets are confidential information that provides businesses with a
competitive advantage. They can be anything from customer lists to manufacturing
processes, formulas, or software code. The importance of protecting trade
secrets is essential for businesses that want to maintain their competitive edge
in the market.
In India, trade secrets are protected by common law, contract law, and tort law,
but there is no specific legislation that deals with trade secrets. This article
will provide an overview of the legal framework for trade secrets in India and
the importance of protecting confidential information. It will also discuss the
challenges faced by companies in protecting their trade secrets and the
potential for future developments in trade secret law in India.
The purpose of this article is to raise awareness about the importance of
protecting trade secrets in India and to provide guidance for businesses on how
to protect their confidential information. By analysing case laws, legal
principles, and real-life examples, this article will provide a comprehensive
understanding of the legal framework for trade secrets in India and the measures
that businesses can take to protect their confidential information.
Definition of Trade Secrets
A trade secret is confidential information that gives its owner an upper hand
over others but is both widely known and readily accessible to the general
public. Examples of trade secrets may include confidential business strategies,
financial information, customer lists, pricing information, marketing plans,
software code, manufacturing processes, and formulas.
Despite other types of intellectual property like patents, trademarks, and
copyrights, trade secrets are other forms of property. While patents protect
inventions and discoveries, trademarks protect brands and logos, and copyrights
protect creative works, trade secrets protect information that is not disclosed
to the public and is kept secret by the owner. Unlike patents and trademarks,
trade secrets are not subject to public disclosure or registration
requirements[i]. Trade secrets provide a competitive advantage to the owner of
the information, as they allow businesses to maintain their market position,
keep their innovations confidential, and protect their valuable information from
Examples of trade secrets may vary depending on the industry. For example, in
the food industry, a recipe for a popular product may be considered a trade
secret. In the technology industry, software code or algorithms may be
considered trade secrets. In the fashion industry, designs and manufacturing
processes may be considered trade secrets.
The Legal Framework for Trade Secrets in IndiaOverview of the laws and regulations that protect trade secrets in India:
Trade secrets are protected in India under various laws and regulations,
including the Indian Contract Act, 1872, the Indian Penal Code, 1860, and the
common law. These laws recognize the importance of trade secrets as a form of
intellectual property and provide protection against their theft and misuse.
Trade secrets are protected by the Indian Contract Act of 1872 through the use
of confidentiality and non-disclosure agreements (NDAs). These contracts can be
used to safeguard confidential information and to stop employees or other
parties from sharing or violating trade secrets. The Indian Penal Code, 1860,
provides criminal penalties for the theft, misuse, or unauthorized disclosure of
trade secrets. Under Section 408 of the Code, anyone who commits criminal breach
of trust by using or disclosing trade secrets can be punished with imprisonment
of up to three years and a fine.
Analysis of the Trade Marks Act, 1999 and the Indian Penal Code, 1860:
The Trade Marks Act, 1999, provides some protection for trade secrets under the
provisions of Section 2(1) (zb) which defines a "mark" as including a "device,
brand, heading, label, ticket, name, signature, word, letter or numeral or any
combination thereof" and any other "sign or combination of signs" that are
capable of distinguishing the goods or services of one person from those of
While the Trade Marks Act does not specifically protect trade secrets, it
provides protection for the trademarks that may be associated with them. For
example, if a company has a trademark associated with its trade secret, it can
use the trademark to prevent others from using the same or similar trademark to
sell goods or services that are similar or identical to its own. In comparison
to other jurisdictions, such as the United States, India's legal framework for
trade secrets is still in its nascent stages. Trade secrets are more fully
protected in the US because of special legislation like the Uniform Trade
Secrets Act. In India, there is no specific legislation that addresses trade
secrets, and the legal framework for protecting them is still evolving.
Comparison of Indian law with other jurisdictions, such as the United States:
In comparison to the United States, India's legal framework for trade secrets is
relatively less comprehensive. Trade secrets are more cautiously protected in
the US because of special legislation like the Uniform Trade Secrets Act. For
the Trade Secret theft, these laws provide civil remedies, criminal penalties,
and injunctive remedies.
However, there have been recent advancements in this field, and India's legal
system is continually developing. For example, the Indian government recently
introduced a draft of the Trade Secrets (Enforcement and Protection) Bill, 2015,
which proposes to provide specific legal protection for trade secrets.
Protection of Trade Secrets in India
In India, trade secrets are protected through a combination of common law,
contract law, and tort law. There is no specific legislation that deals with
trade secrets in India, which means that it is up to businesses to take
proactive measures to protect their confidential information. One of the most
important measures that companies can take to protect their trade secrets is
through the use of confidentiality agreements, non-disclosure agreements, and
other contractual arrangements.
These agreements are designed to restrict the
disclosure of confidential information and to ensure that employees,
contractors, and other parties who have access to confidential information do
not disclose it to third parties[iii]. Companies can also take measures such as
requiring background checks and screening processes to ensure that employees and
contractors are trustworthy.
Additionally, companies can take physical measures to protect their trade
secrets, such as storing confidential information in secure locations, limiting
access to sensitive information, and implementing security protocols for
electronic devices and networks. In the event that a company's trade secrets are
misappropriated, they can seek legal remedies under the common law and tort law.
This may include injunctive relief, damages, and other forms of legal remedies.
Under Article 39 of TRIPS (Trade-Related Aspects of Intellectual Property) and
NAFTA (North American Free Trade Agreement), certain provisions are designed to
strengthen the protection of trade secrets.
Protecting trade secrets in India requires a comprehensive approach that
involves contractual measures, employee education and training, physical
security measures, and legal remedies in case of misappropriation. By taking
proactive measures to protect their confidential information, companies can
ensure that they maintain their competitive advantage and continue to thrive in
their respective industries.
Case LawsJohn Richard Brady and Ors v. Chemical Process Equipment Pvt. Ltd. and Anr
The case of John Richard Brady and Ors v. Chemical Process Equipment Pvt. Ltd.
and Anr (1987)[iv] involved allegations of breach of confidentiality and misuse
of trade secrets in the chemical manufacturing industry, and resulted in a
landmark ruling on the definition and protection of trade secrets under Indian
Tata Consultancy Services Limited v. State of Andhra Pradesh (2004)
In the case of Tata Consultancy Services Limited v. State of Andhra Pradesh
(2004)[v], Tata Consultancy Services filed a writ petition against the state
government of Andhra Pradesh for the alleged misappropriation of trade secrets.
However, the company was unable to prove that the information misappropriated
was confidential and not generally available to the public, which led to the
case being dismissed.
Challenges in Protecting Trade Secrets in India
Despite the significance of trade secret protection in India, businesses
confront substantial hurdles in efficiently keeping their confidential data
secure.. Some of the challenges include:
Lack of Specific Legislation:
As mentioned earlier, India does not have specific legislation that deals with
trade secrets. This means that companies have to rely on a combination of common
law, contract law, and tort law to protect their trade secrets.
Difficulty in Proving Misappropriation:
Proving that a third party has misappropriated trade secrets can be challenging.
Unlike patents and trademarks, where infringement is easily identifiable, trade
secret misappropriation may not be evident. Companies have to show that the
information misappropriated was not readily available to the public and that the
third party gained access to the information through improper means.
Lack of Awareness:
Many Indian businesses are unaware of the necessity of safeguarding their trade
secrets. This lack of awareness may lead to companies not taking proactive
measures to protect their confidential information.
Lack of Trustworthy Employees:
Employers in India may face difficulty in hiring and retaining trustworthy
employees who will not disclose trade secrets to competitors. This may be due to
cultural norms, lack of proper employee background checks, or other factors.
Remedies for Misuse of Trade Secrets
Legal remedies are available to businesses that have been victimized by trade
secret misappropriation. These remedies include injunctions, damages, and
An injunction is a court order that prohibits the defendant from engaging in
certain activities, such as using or disclosing the trade secret. Depending on
the facts of the case, injunctions may be either temporary or permanent.
Injunctive relief is a powerful tool for businesses because it can prevent the
defendant from using the trade secret before it is disclosed, sold or otherwise
If a business can prove that it has suffered financial losses as a result of the
defendant's misuse of the trade secret, it may be entitled to damages. These
damages may include compensatory damages, which are intended to compensate the
business for its losses, or consequential damages, which are intended to
compensate for any indirect losses caused by the misuse. In some cases, a
business may also be entitled to recover the profits made by the defendant as a
result of the misuse.
A business may be entitled to punitive damages if the defendant's act is
extremely heinous. Punitive damages are meant to punish the one responsible and
prohibit others from participating in similar actions. They are usually only
given in circumstances when the defendant's acts were intended, deliberate, or
Injunctions and damages are the most common remedies in trade secret cases.
Injunctions can be particularly effective because they can prevent the defendant
from using the trade secret before it is disclosed, sold or otherwise exploited.
Although damages can be a useful remedy, they are often hard to determine and
collect. Punitive damages are less common but can be an important deterrent
against future misappropriation.
In conclusion, trade secrets play a critical role in the success of businesses
in India, but there are significant challenges in protecting them. This article
has discussed the importance of protecting trade secrets, the measures that
companies can take to safeguard their confidential information, and the
challenges faced in enforcing legal remedies.
The lack of specific legislation for trade secrets in India, difficulty in
proving misappropriation, lack of awareness among companies and employees, and
difficulty in enforcing legal remedies are significant challenges. However, it
is imperative for companies to take proactive measures to protect their trade
There is a need for stronger legal protections and increased awareness among
companies and employees to safeguard confidential information. The Indian
government may need to consider developing specific legislation that deals with
trade secrets to provide better protection to businesses.
As India continues to emerge as a global economic power, there is potential for
future developments in trade secret law to meet the changing needs of businesses
in the country. By taking steps to protect their trade secrets, companies can
position themselves for success in the competitive Indian marketplace.
Award Winning Article Is Written By: Mr.Shubham Mahadeo Walunj
Authentication No: JL319827752572-17-0723