PROTECTING TRADE SECRETS IN INDIA
ABSTRACT:
Trade secrets are essential in today's globalised economy. Because of the basic criteria of thorough disclosure, developers/inventors may refuse to have their product/process patented. Trade Secret is a one-step answer to all of these problems. Unfortunately, the concept of providing trade secret protection has only seen development in developed economies.
Intellectual property is a branch of law jurisprudence that is currently in its early stages in India. Time and again, the Indian judiciary has attempted to fill that gap by referring to numerous foreign legislations and judgements.
The National Innovation Bill 2008 was one courageous move the parliament took in this direction, but it was never introduced, leaving trade secrets only protected by other existing laws. The blog also makes an effort to offer some recommendations for clearing up the confusion and paving the path forward in this area.
Keywords trade secrets; National Innovation Bill 2008; Indian IP regime
INTRODUCTION:
Occasionally, one comes across meal recipes that appear to use common ingredients. However, the Chef would refer to the dish as a secret recipe. What is the point of keeping it hidden when the ingredients are so common. The proportions of components used and the procedure of producing that particular dish distinguish it from others, and when employed for business, it becomes a Trade Secret, giving the company an advantage over competitors in the market. As long as the trade secret can be kept secret, the owner gets the benefits of exclusive rights to it.
With the onset of globalisation, corporations began to break free from their insular moulds. With the growth of enterprises, it has become critical to have effective trade secret protection. In its most basic form, a trade secret is any vital information that is advantageous to the firm doing the trade and must be kept confidential for the benefit of the company. The trade secret varies depending on the type of business or transaction being conducted. This element contributes to the diversified scope of trade secrets, making it difficult to establish a clear definition.
PROTECTION IS REQUIRED:
The question that now emerges is why trade secret protection is required. Because trade secrets are critical to a company's operations, they must be safeguarded.
Protecting trade secrets is crucial, much like protecting other types of intellectual property, but it is also critical to distinguish between trade secrets and other types of intellectual property rights. Trade secrets are more like protecting good will and brand identity, and doing so necessitates an organisation establishing and then maintaining security procedures. Trade secrets require ongoing effort rather than a single application and grant by a federal agency in order to be protected by lawsuits against infringers in the future.
TRADE SECRET AND EXISTING IP REGIMES:
Trademark and Trade Secret
A trademark is a well-known and well accepted commodity or service. It is explicitly associated with a certain corporation or business group. A trade secret, on the other hand, has a considerably broader scope, and as such, as the name implies, it is unknown to the general population.
Trademark rights can be used to prevent others from using an identical mark, but they cannot be used to prevent others from producing the same things or promoting the same goods or services under a clearly distinct mark. Trademarks used in interstate or international trade may be registered with the Patent and Trademark Office under the Trademark Act of 1999. (Krishna, 2007b).
Trade secret and copyright
Copyright law protects the author's creative work, which includes "music, paintings, sculptures, books, computer software, architectural plans, and motion pictures" (The Copyright Act, 1957). Although the work is automatically protected under copyright, in order to reap the benefits of the statute, the creator must register the work with the appropriate body.
Trade secrets, on the other hand, are confidential information that is not easily accessible to the general public and when the owner of such information has taken necessary and reasonable precautions to prevent it from entering the public domain. Trade secrets do not need to be registered, but they do require reasonable secrecy precautions that a corporation takes (Pai and Seetharaman, 2004).
Patent and trade secret
Trade secret protection is frequently considered to overlap with patent protection, as both are sufficient to protect a new idea on their own. When contrasted, however, patent law protection is exposed to numerous examinations, beginning with the subject matter of protection. However, there are no equivalent standards for trade secret protection, hence the scope is substantially greater.
Under the Patent Act of 1970, patent protection is normally awarded only to technical breakthroughs that meet the criteria of novelty, inventive step, and usefulness or industrial application. As a trade secret, both technical and non-technical information, such as a business plan or marketing strategy, can be protected. Both patents can protect software and activities related to it.
HOW IS TRADE SECRET LAW GOVERNED?
Indian contract act
Section 27 of the Contract Act is the specific statute that binds the parties not to divulge information that is contradictory to the terms of the parties' contract, i.e. Non-Disclosure Agreements.
The violation of confidentiality and privacy is punishable under Section 72 of the Information Technology Act of 2000. Sections 405-409 of the Indian Penal Code, 1860, deal with cases of criminal breach of trust.
CONCLUSION AND SUGGESTIONS
We can easily gather from the arguments that trade secret security is of paramount importance. It not only encourages innovation but also governs market competition. The safeguarding of trade secrets is critical to the company's growth. In fact, a reform in the regime would greatly encourage foreign investment. To understand what modifications can be implemented, it is necessary to first learn a little about the practises that are currently in place in other regimes.
There is a need for a legislation that is consistent. It is critical that a correct definition of "trade secrets" be included in order for the breadth to be adequately described. The current level of protection is really limited. To some extent, NDAs and NCAs can protect trade secrets, but a better and more nuanced system would substantially drive ongoing development.