Written by William Miles | February 28, 2022
Firstly, let me start with an apology for the misleading title. As an intellectual property lawyer, I am constantly asked how to protect an idea. Unfortunately, my answer involves explaining one of the most fundamental principles of intellectual property law: there are no rights in an idea. Instead, the rights only subsist in the expression of an original idea.
For example, I could have the idea to write an article about IP law. However, that idea alone will not give me any protectable rights. Instead, it is only the expression of the idea, i.e., this particular article and these particular words, that is sufficient to qualify as a protectable work.
So, now that we’ve cleared that up, we should now address methods of protection.
There are several ways to protect a design idea – keeping in mind that the idea cannot be protected without expression.
As soon as an original idea has been properly thought through, it’s likely to benefit from the concept of confidential information. This normally comes in the form of a trade secret, and “secret” is really the operative word here.
The most famous example is the recipe for Coca Cola. It’s a complete secret, and it is only disclosed to third parties under a duty of confidentiality, which is formalised via a Non-Disclosure Agreement (or “NDA”). In practice, this means that Pepsi is perfectly entitled to try and guess the recipe, but Coca Cola’s actual recipe is proprietary knowledge. And so, if it was to be disclosed by someone who had actually received that knowledge, Coca Cola would be able to claim a breach of the NDA.
Similarly, if you were developing an idea, even only roughly, and you wanted (or needed) to share it with a third party, then you would be well advised to ask them to sign an NDA prior to the disclosure.
But, given that asking everyone who sees your work to sign an NDA isn’t practical, it’s worth considering different forms of intellectual property rights to protect what you have created.
One such right is copyright, which is an extremely useful form of intellectual property. Firstly, it’s free to own (at least in the UK and EU). It’s also an unregistered right and so no fees are required in order to secure it – the old adage used to be that copyright subsists as soon as the ink is dry on the paper. Admittedly ink is not the most relevant medium nowadays, but the principle is sound. As soon as you have created an electronic file describing your design, you are likely to hold the copyright in it. However, the design must be original and “you” in this context will only actually mean you if you are not an employee working in the course of your employment. However, in all other scenarios (the most common being that the author is a freelancer) the author is the first owner of the copyright, and ownership can only be transferred with an agreement in writing.
Copyright is also extremely useful because it protects graphic and artistic works along with text, sound and software code. Also, that free protection will last for 70 years from the death of the author (much longer than, for example, the term of protection for a patent, which is only 20 years).
As to other relevant forms of intellectual property, registered rights would be next on your agenda. From the perspective of protecting a design idea, these come in two forms: registered designs and patents.
Registered designs protect the shape and service decoration of an article. They are very cheap to obtain (at least in the UK and EU), but they’re less used and more expensive elsewhere. Also, just to confuse things, in China they’re known as design patents.
Patents, on the other hand, protect inventions. They are very difficult and expensive to obtain but they offer powerful and well-recognised protection. However, the key is to ensure that you get your patent application underway before any aspect of your design idea has been publicly disclosed, otherwise, the patent will be invalid through lack of novelty.
That brings me neatly back to confidential information, and before I disclose any more trade secrets, I think I’ll stop there. If you have any further questions about protecting a design idea, please get in touch to arrange a free consultation.
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