“What to do if another business copies your concept or idea – is there a legal remedy?”

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“The smallest seed of an idea can grow. It can grow to define or destroy you.”- Inception

An idea, like a seed grows into a plant and subsequently, with effort, into a tree. The plant or the tree is then known as the “expression” of that idea, and legally this is what is protected. Then what happens to the seed? That first eureka moment when things seem to fall in place and something vivid appears in the mind of the person imagining or thinking about it. Unfortunately for most ideas to become something functional, it needs to be exposed to a variation of external agents, and that is when it starts to become public in some way or the other. Then how do we protect it? How do we enforce any kind of privity over that idea?

Unfortunately, the legal structure in its present form, does not provide any protection to the nascent form of an idea. An idea has to undergo some sort of a ramification to claim for any kind of protection from the law. For a business idea, the entrepreneur has to involve more than one person at some level to implement it and once it is put to use, the idea is always vulnerable to a variety of modifications and other kind of rip offs by almost anyone who comes across the same. In such a case, the idea has its best chance if it can be tailored to the requirements of any wing of the laws on intellectual property. These laws, depending on the jurisdiction, try to ensure that the unique expression of any idea is protected, but the one and only precondition is that an expression has to be in existence.

In order to understand the term “expression” vis-à-vis the intellectual property (more commonly knows as IP) laws, the different facets of IP law must be discussed in brief. These are terms which we might have come across already, as they are widely used, and these are: copyright, trademark  & patent. Now each of them govern a separate facet of intellectual property and demand for a different kind of expression. Copyright, as we might be familiar with, mainly focuses on the expression of the idea and covers the entire chunk of literary works, sound, art, software etc. anything that has a tangible form of the expression can be copyrighted. Trademark focuses on goods and services, which have a unique form by which they can be identified, a trademark usually needs to be registered, unlike a copyright, but covers a huge ambit of protection to the goods and services. A Patent is a scientific facet of the IP Laws, and protects an ‘invention’, thus making it the nearest out of the three major segments of IP laws, which tries to protect something that is not entirely in function but promises to be in the future. But a patent has many other requirements, it has to be approved by the appropriate authority as set by the laws of that country in compliance with WIPO, the United Nations wing on intellectual property, and it has to be a ‘novel’ idea which guarantees ‘utility’, which means that an idea can be patented only when it provided sufficient proof of its originality combined with its application in the society.

Hence the legal remedies associated with the protection of an idea have their own criteria which have to be complied with by those who seek the protection. Hence, when any business ‘steals’ or copies or rips off an idea to implement the same somewhere else, there can’t be any prima facie rule which prevents this, unless there is some kind of a tangible proof. So the business idea, if in the form of a layout or any code, or any scheme, it has to be written down and preferably registered, as copyright. If the business idea is on the lines of an invention, then it needs to be patented, then it gets a protection of a minimum of 20 years as per the laws set by the international authorities. If the business idea is in the form of a design, or a logo, or any specific kind of packaging, or any distinct smell or colour then it can get the protection of the laws governing trademark, preferably when it is registered although it is not a mandatory requirement.

The law can intervene only when there is sufficient evidence to prove the existence of the idea, hence the creator needs to be very alert about the implementation of his/her idea and there are certain other legal tools which might be applied in order to prevent any kind of idea dissemination, and these are:

– Non Disclosure Agreement (NDA): An NDA is an agreement which two parties, mostly the employers and the employees, undertake, which states that the employee will not use the information of the employer to start a competing business. This ensures some kind of protection of the trade secret which the business banks on. These kind of agreements are usually an exception to the general rule of freedom of trade, these agreements are validated on the ground of fidelity which is expected from the employee in the course of his employment.

 

– Non-Compete Clause: A non-compete clause is another form of protection employed by the employer in order to prevent the disclosure of business ideas. This kind of a clause, in an agreement, restrains an employee from working for a competing business, ensuring that the confidential information known to the employee remains unharmed from other competitors.

 

These legal tools employed might protect the entrepreneurs to some extent, but again these legal tools come into force when the idea has some sort of functional progress. Hence, today as per the existing laws, an idea can be best protected only when it has form, and hence if the business idea is stolen by a rival entity, then the best chance at remedy lies in the evidence supporting the idea. We are yet to enter the world where our dreams and ideas can be insured, hence till that day arrives, the burden lies on us to protect that seed which promises to be the plant tomorrow.

This article is written by Ms. Shreya Basu, Associate at Grayscale Legal

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Mohit Bansal(23) is B.Tech in Electronics and Communication Engineering from Indian School of Mines, Dhanbad, India. He has interest in business and entrepreneurship and has published couple of research articles. He is also associated with various NGOs. He is with Techaloo when it was just in concept stage. The Techaloo site was not existing even then. Currently Mohit is working with Mu Sigma as a Business Analyst Profile.

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