Trade Secret – Confidentiality

Can information be kept confidential so that proprietary and trade secrets can be legally protected? Such an agreement is termed as non-disclosure agreement. Here at least two parties enter into a contract legally. Such a contract has to outline confidential knowledge, material or information that the parties are willing to share with each other while restricting access to a third party.

In other words it is a confidentiality agreement through which parties agree not to disclose information covered by the agreement with regards to proprietary information or trade secrets. Usually it can be signed by societies, partnerships, individuals, companies or other entities only through mutual consent. An intellectual property lawyer can ascertain the type of non-disclosure agreement (NDA) that is best suited to the client. An NDA could be unilateral, bi-lateral or multilateral keeping in mind parties involved, reviews, complex negotiations, unanimous consensus in order to generate fair and balanced outcomes.

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While drafting an NDA, the lawyer has to consider the parties to the agreement, the time period and subject matter of confidential information. Besides this any information in public domain cannot come under confidentiality clause. Further the resolution mechanism in case of a breach must be covered. The Indian Contract Act, 1872 clearly states that in case of a breach the party incurring the loss can file a case due to contract violation and the party committing the breach will have to compensate the loss if proven guilty. Any restrictive clause in NDA differs from sector to sector making it industry specific. Hospitals, hospitality, e-commerce, food technology, software technology or others will have their own unique confidentiality clause depending on the composition of a product and relevant service involved. An NDA can be used in a spectrum of situations so a remedy also varies situationally. If an obligation arises due to breach of confidentiality a remedy analogous to the breach of contract may be suitably applied. When an NDA is violated, first contact an attorney, acquire evidence, clearly determine legal claims to make and determine what you lost and what you want as compensation.

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