Protection of Intellectual Property and Trade Secret

Protection of Intellectual Property and Trade Secret

Intellectual Property (IP) has historically been divided into copyright and industrial property. Patents, trademarks, industrial designs, and geographical indications of the source are included in the term industrial property. To protect literature, artistic and musical works, copyright protection is granted. Copyright rights include those of musical artists in their works, manufacturers of phonograms in their recordings, and those of radio and television stations in their services.

Protection of IP

The following acts deal broadly with intellectual property protection:

1. The Patents Act, 1970 (as amended in 2005)

Innovations, products, or processes that have new functional or technological elements are typically protected by patents. It is issued by the Office of the Indian Patent and has a 20-year term. The product/invention would fall into the public domain for every third party to use it after the end of this 20-year monopoly.

The Patent Act 1970 and the Patent Rules 2003 are the laws dealing with the defense and registration of patents in India. Three (3) revisions in 1999, 2002, and 2005 were made to the Patent Act 1970. In the 2005 amendment, product patent protection was introduced for food, pharmaceutical, and chemical inventions.

know more about patents law, see the video below-

2. Trade Mark Act, 1999

Owners who do not pay adequate attention to the protection of their company's trademarks face a number of risks, including the inability to register or use their own trademarks at a future date, the dilution of the market's recognition of their products or services, and in some cases, the expenditure of enormous resources in legal proceedings to prevent or justify unauthorized use of their own goods or services.

It is therefore relevant for trademarks to be registered in respect of all the goods and/or services for which the mark is used. The Trademark Act 1999 and the Trademark Rules 2002 are the laws that deal with the protection and registration of trademarks in India. In India, registration of a trademark is valid for a period of ten years. The same may be renewed from time to time for a further period of 10 years each.

know more about trademarks law, see the video below-

3. Copyright Act, 1957

The creator of a copyrighted work has the right, for a certain period of time, to control/prevent unauthorized copying or reproduction by others of their work after the said work enters the public domain. According to national legislation and the type of work, copyright protection varies. Copyright protection for the work done by an individual for the author's lifetime plus sixty (60) years is extended by Indian law.  The Copyright Act, 1957, and the Copyright Rules, 1958, provide for copyright protection in India.

For securing copyright protection for a work, there are different criteria. First, the work must be original and, second, it must be fixed or presented intangible forms, such as writing, recording, film or photography, etc. Copyright does not cover the basic concept, but only the representation of that specific idea is protected by copyright.

know more about copyright law, see the video below-

Case Law

In the case of N. R. Dongre v Whirlpool (1996) 5SCC 714 In India, the trademark "WHIRLPOOL" was kept to gain credibility and goodwill. The mark "WHIRLPOOL" was also considered to have been synonymous with Whirlpool Company in the minds of the public due to the circulation of the commercials in the magazines despite no evidence of actual sales.

The trademark WHIRLPOOL was therefore held to have acquired a trans-border reputation which, regardless of its actual user or registration in India, enjoys protection in India.

Trade Secrets

It should not be easy to ascertain the data that is said to be a trade secret. The value of trade secrets in the field of intellectual property has grown over the years to a degree beyond patent protection. The legislation relating to the security of trade secrets is regulated by agreements such as the North Atlantic Free Trade Agreement (NAFTA) and the Trade-Related Aspects of Intellectual Property Agreement (TRIPs, Art. 39).

Protection of Trade secrets

In India's GATT (General Agreement on Tariffs and Exchange) discussion paper published in 1989, India's first position on trade secrets is found. As a result, India declined to include trade secrets in the intellectual property rights concept. On the one hand, the definition of intellectual property is focused on its potential disclosure, disclosure, and registration; on the other hand, trade secrets are based on privacy and confidentiality.

• Breach of contract

In India, via a contract, a person may typically be bound by an employee to not reveal confidential information. This is normally achieved by inserting confidentiality provisions, non-disclosure clauses in employment agreements, consultancy agreements, franchise agreements, etc.

As far as the role of the Indian courts is concerned, the courts have generally leaned towards maintaining such restrictive clauses that include negative agreements not to reveal or use the information obtained under the agreement for any reason.

• Breach confidence

Another manner in which Indian courts have given protection to trade secrets is by expanding the original confidentiality arrangement to third parties that have confidentially accessed sensitive information of that nature.

In the case of Zee Telefilms Ltd. V. Sundial Communications Pvt. Ltd

The Court has expanded the scope of action for breach of trust and has held that the duty of trust must not be limited to the original receiver, but can be extended to all individuals who have obtained the information with the knowledge gained at the time or after that it was initially given in trust.

While there was no express non-disclosure agreement, it was held that the defendant could still be held accountable as the evidence and circumstances showed that the data was released in trust.

Preventive steps for the protection of Trade secrets

There are various steps that can be taken for the protection of trade secrets i.e.

• Labeling data as sensitive information.

• Entering into non-disclosure and non-compete arrangements with personnel, advisers, licensees, etc.

• The limits and contours of a confidentiality agreement should be clearly established.

• Refrain from sharing whole or major portions of confidential information.

• Restricting access, using antivirus and antispyware programs in the case of digital information that uses the requisite firewall security.

• Enlightening staff about the implications of deceptive disclosure of sensitive information.

Case Law

In the case of Niranjan Shankar Golikari v. Century Spinning It has been concluded that restrictions on employment agreements that prohibit the disclosure of confidential information during the period of employment and even after that period of employment are generally not considered to be restrictions on trade and are therefore not protected by Section 27 of the Indian Contract Act, 1872.

BY-

Saumya Krishnani