So you have a great business idea? Well, hold on before you show it off to the wide-eyed corporates!
It’s not unusual for hundreds of great ideas for new products or services to make it to the market because of the lack of the means to enable that. So the conceivers of the idea often hunt around for a larger company to help them. Now here’s the important part- if you feel that your idea is so unusual and most importantly, novel; so much so that it’s patentable, it is highly advisable that before showing it off, you make the company sign a nondisclosure agreement promising you that it won’t steal it.
Of course you don’t know how to frame any such legal mumbo jumbo. So get a lawyer! Keep in mind that he’s experienced in your industry or at least your genre of product/service. Be very sure about what you want the agreement to contain. As a small fish in the pond, I would advise you to keep the terms and conditions slightly flexible so that it doesn’t repel the big companies away and at the same time it completely protects your idea from theft. Some agreements spell out exact monetary penalties if the signer is found to have breached the agreement, but of course, seek out this course if you are sure that you have a higher hand. These things matter. A lot.
Now here’s the dirty part. Without such a protection, winning a claim against infringement may be difficult. The Courts love evidence and material facts- the copy of your agreement is exactly that. Well, in case you do encounter a copycat, it may be worth hiring a lawyer in order to have the merits of your case investigated. If the manufacturer has replicated your product and packaging to the extent that it causes customer confusion or has copied something that is protected under Trademark or Copyright law, then you may have a strong legal case.
But let’s get practical. A company is more likely to change or alter your idea just enough to dodge any legal issues. And for a budding entrepreneur, it should be borne in mind that enforcing these legal protections in court can be repulsively expensive. So be very sure that you want to take this path. Weigh all your options.
Usually the lawyer sends a cease-and-desist letter, describing the nature of the offence and requesting the offender to halt his production and possibly pay damages. But if this doesn’t work, and neither do further negotiations, it’s lawsuit time!
Etch it in your mind permanently that a suit can cost a lot of money. Lawyers don’t work cheap and big players don’t let go easy. So in this David versus Goliath, you have to be extremely rational and not waste away money on legal fees for a lost cause, and especially your time that you could have given to your business. To collect any compensation in court, generally the burden is on you to prove that you suffered damages from the alleged infringer’s actions- some challenge if your sales are rising.
In the end, on a very practical note, the best way to protect yourself and your intellectual property is by being extra cautious about whom you share your idea with. It’s easy to spill out your ideas over a few drinks. Don’t. It is worth gathering information, opinions, references and contacts by conversing extensively with others in your industry before disclosing your concept to anyone.
Stay tuned, we will be subsequently writing on various procedures to get your idea protected under Copyright Act, Trademark Act, Patents Act, Designs Act etc.