Useful WIPO guide on Trade Secrets and Innovation

In recent years, many exporters and importers have felt aggrieved that the confidential data they furnish to the Customs through the ICEGATE portal are sold by certain individuals/organisations despite the deterrence provided in Section 135AA of the Customs Act, 1962. They should now go through the ‘Guide to Trade Secrets and Innovation’ brought out by the World Intellectual Property Organization (WIPO) and strategize their responses.

The WIPO’s guide has separate sections dealing with strategic roles of trade secrets in the innovation ecosystem, basics of trade secret protection, trade secret management, trade secrets in litigation, trade secrets in collaborative innovation and trade secrets and digital objects. The WIPO has also brought out a supplement titled “Overview of Trade Secret Systems in Certain Countries and Regions” summarising certain aspects found in national/regional trade secret laws such as sources of law, definition of trade secret, scope of trade secret protection, exceptions, civil remedies, criminal sanctions, procedural provisions and trade secret protection in judicial proceedings. A second supplement gives trade secret management practices in different industry/service sectors.
 

Trade secrets are confidential information, not generally known among, or accessible to, the persons in the relevant business sector. They are commercially valuable. The rightful holder of the confidential information must take reasonable steps to keep it secret. In principle, unauthorised acquisition, use or disclosure of a trade secret by others in a manner contrary to honest commercial practices is considered misappropriation of the trade secret. When patented inventions or trademarks are used without authorisation of their owners, the words “patent infringement” or “trademark infringement” are used. When trade secret information is used without authorisation of the trade secret holder, this is called “misappropriation” and those who carry out the misappropriation are called “misappropriators”, in the guide.
 

When trade secret misappropriation happens, the trade secret holder canseek various legal remedies. No registration is necessary to obtain trade secret protection. As long as the information qualifies as a trade secret, it is protected indefinitely. Where specific laws do not exist to protect trade secrets, common law can be pressed into service for seeking necessary relief through the courts, which may be in the form of injunctions restraining further acts of acquisition, disclosure or use of trade secrets, monetary remedies if a causal link can be established between the alleged trade secret misappropriation and the losses claimed by the trade secret holders or unjust enrichment of the misappropriator and additional remedies as appropriate. The guide discusses what issues need to be looked at before taking legal action, how the trade secret holder can build a strong case against the misappropriators and how to discharge the burden of proof.
 

Exporters invest lots of time, effort and money in finding customers and developing products to meet the requirements of the buyers. Similarly, the importers invest in discovering items that suit their processes and developing vendors who can supply such products. Leakage of information regarding their products, customers or vendors, price, quantity, frequency of shipments etc. can jeopardise their competitive advantages. The WIPO guide gives information on what they can do to preserve such trade secrets and what action to take whenever another party takes undue advantage by accessing sensitive data through unfair means. Exporters and importers should get familiar with their options for taking legal action against such unscrupulous elements. 

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