Protecting Undisclosed Information

In one line

"Undisclosed information" is the phrase the international system uses instead of "trade secret", it is protected as a branch of unfair competition rather than as property, and India's obligation to protect it comes from TRIPS Article 39.

Why there is a different phrase at all

"Trade secret" is an American and English phrase. "Undisclosed information" is the phrase the Uruguay Round negotiators chose, and the choice was deliberate and political.

Three reasons for it, and they are examinable.

One: it avoids the word "property". Many delegations, India among them, resisted treating commercially valuable secrets as a form of intellectual property at all, on the ground that intellectual property rights are granted by the state in exchange for disclosure, and a secret is the opposite of a disclosure. "Undisclosed information" is a description, not a right.

Two: it is wider. It reaches information that is not "of the trade" in any narrow sense, and, in Article 39.3, reaches test data submitted to a government, which nobody would call a trade secret of the ordinary kind.

Three: it fits the unfair competition frame. Article 39.1 anchors the protection in Article 10bis of the Paris Convention, which is about unfair competition, and not in the property provisions.

India's negotiating position was that undisclosed information should not be in TRIPS at all. The Law Commission's Report No. 289 of 2024 records this history and observes that India historically opposed the inclusion of trade secrets within TRIPS and resisted pressure to legislate, before concluding that the position has changed.

Where the protection comes from: Article 39.1

"In the course of ensuring effective protection against unfair competition as provided in Article 10bis of the Paris Convention (1967), Members shall protect undisclosed information in accordance with paragraph 2 and data submitted to governments or governmental agencies in accordance with paragraph 3."

Read the structure.

The obligation sits inside unfair competition. The opening words make the protection of undisclosed information a way of discharging the Paris obligation, not a new species of property.

And it has two limbs. Paragraph 2 for undisclosed information generally. Paragraph 3 for regulatory test data. Chapter 1110 takes the second.

Article 10bis of the Paris Convention

Because Article 39.1 incorporates it, it must be read.

"(1) The countries of the Union are bound to assure to nationals of such countries effective protection against unfair competition."

"(2) Any act of competition contrary to honest practices in industrial or commercial matters constitutes an act of unfair competition."

"(3) The following in particular shall be prohibited:" acts creating confusion with a competitor's establishment, goods or activities; false allegations discrediting a competitor; and indications or allegations liable to mislead the public as to the nature, manufacturing process, characteristics, suitability or quantity of the goods.