Remfry & Sagar

The viability of trade secret protection

& RY SA F G Trade secrets can become a key factor in M A and characteristics, making competition

E R a ’s success. But this category particularly tough. It is the drive of a

R of unconventional rights is largely businessperson to produce something unique ambiguous and unregulated and innovative, yet economical that is often the thin line between commercial accomplishment 1 8 2 7 By Sahil Taneja and Samridh Bhardwaj, Remfry and failure. Everyone knows that there are & Sagar secret recipes for making the world’s tastiest fried chicken, most popular cola drink, Your most precious, valued possessions trendiest fragrance and most popular brand of and your greatest powers are invisible and bourbon. Although not quintessentially an IP Remfry & Sagar intangible. No one can take them. You, and you right, trade secrets can become the key factor alone, can give them – W Clement Stone behind a business’s success. ATTORNEYS-AT-LAW In the current business environment, it has What is a trade secret? TRADE MARKS • • • become increasingly important for industry In India, unlike other types of IP right, trade participants to keep their trade and business secrets are not governed by specific legislation. information confidential in order to retain Nonetheless, the Indian courts have not a competitive advantage. Vital information shied away from protecting such secrets in necessary for the continuance and profitability appropriate circumstances. In fact, the concept of a business may not always qualify for of a trade secret enunciated by the courts protection under the more conventional IP follows the US definition of ‘trade secrets’ set rights, such as designs, copyright, patents out in the Uniform Trade Secrets Act 1970, and or . Rather, it often falls within a the definition of ‘undisclosed information’ set largely ambiguous and unregulated category of out in Article 39(2) of the Agreement on Trade- rights termed ‘trade secrets’. Related Aspects of IP Rights, to which India is a Traditionally, Indian have signatory. Trade secrets have been recognised been known to harbour ‘secret somethings’ as information with commercial value which which they claimed made their products is not in the and in relation to better than those of competitors. True or not, which the owner has taken reasonable steps to these assertions have laid the foundations for maintain secrecy. These three conditions are industry players to capitalise on their trade elaborated below: secrets in India. • Commercial value – like certain other Businesses are under constant pressure intangibles (eg, goodwill), trade secrets to innovate in order to meet consumer form an essential part of the assets of a Remfry House at the Millennium Plaza 376-B (Old No.202) expectations, while retaining favourable price business insofar as they are capable of Sector 27, Gurgaon - 122 009 Avvai Shanmugam Salai, Gopalapuram levels in the face of competition. In certain having a direct impact on its profitability. New Delhi National Capital Region, India Chennai - 600 086, India sectors where the existing product lines In other words, the information sought Tel : 91-124-280 6100 Fax : 91-124-280 6101 & 257 2123 Tel & Fax : 91-44-4263 7392 are the result of many years of , to be protected need not have an E-Mail: [email protected] E-Mail : [email protected] it is common for competing products independently ascertainable economic http://www.remfry.com http://www.remfry.com to have similar specifications, features value, but it should be capable of bestowing

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