Business ideas: Can you protect them? Copyright, patents and trademarks may protect intellectual property (IP)

Thanks to the Facebook saga, depicted in the movie The Social Network, more entrepreneurs are aware of the dangers of telling others their great ideas. But what can you do if someone (not an employee or business partner) with whom you shared your idea runs off and starts a competing business?

For the purpose of this article, we define an idea as a concept that exists in the mind only. Using this definition, we can quickly narrow down what forms of protection and recourse might exist.

Patent protection

A patent is a means for an inventor to claim ownership of an invention. The invention must be novel, have utility and it cannot be obvious to a person of ordinary skill in that particular art. The patent-application process necessarily involves putting the idea for the invention in writing. Thus, a concept that exists in mind only is not protectable under the Patent Act. In fact, speaking openly and in great detail about your idea might bar you from future patent protection.

Copyright protection

Copyright protects the expression, in a fixed form, of a business idea and not the idea itself. Thus, neither the Copyright Act nor common law will help protect your business idea based on copyright. If you want protection, you must fix it in a tangible form (for example, a photograph, a video, a piece of writing, a sound recording, a computer program).

Even then, it is only the expression of the idea that is protected. For example, there is no copyright in the idea to start a social networking website or for the rules and plot of a computer game—only the computer code, graphics, sound and layout may have copyright.

Trademark protection

There are two basic types of trademarks: a word mark and a design mark. (Note that a third type exists, called a distinguishing guise, but we do not cover this in this article.) Both variants are used to distinguish the wares and services you provide, or will provide, from those of your competitors. Thus, an idea for a product or service name might fall within the realm of common-law trademark protection.

Unfortunately, while it may be hypothetically possible to obtain common-law protection for a word mark based solely on oral repetition, it would be extremely difficult to prove your intention to protect the name. Essentially, trade-mark protection will not prove feasible.

Confidential information

Confidential information is a form of intellectual property (IP) that has commercial value, is not in the public domain, is reasonably protected and is communicated to others in confidence. To have a cause of action against someone who stole your idea (that is, to be able to sue), your biggest challenge will lie in proving your idea has commercial value and that you sustained damages.

Arguing that you would have made millions had you acted and succeeded with your idea (that is, speculative damages) is unlikely to persuade a court. This form of IP, while weak, provides the best option for legal recourse should your idea be stolen.

Going public

Likely your only viable option to seek redress is to go public (newspaper, television, radio and Internet). The benefits can include public recognition and compensation by those shamed into paying you. The dangers are numerous and include litigation against you for defamation.

Business ideas do not equate success

The originators of an idea often feel cheated when their idea is commercialized by others. It is important to appreciate, however, that more goes into a successful company or product than just ideas. And even when ideas are acted upon and fixed in tangible forms, it does not mean that they will dominate the marketplace. Consider the following examples:

• YouTube was acquired by Google Inc. for $1.65 billion in November 2006 whereas IFilm, which began in 1998, was purchased by MTV Networks in 2005 for only a few million dollars.
• Friendster predates Facebook by two years yet Facebook reportedly has 600 million users whereas Friendster numbers at eight million.

Conclusion

In short, you have very little recourse if someone steals your idea. Lawsuits are expensive and time-consuming, and your chances for success when arguing the misappropriation of your idea are slim to none. It is best to heed the wartime adage: loose lips sink ships.

Note:The content in this article is for purposes of general information only. It is not legal advice.

References

Canadian Intellectual Property Office. (2011, April 27.) Retrieved May 3, 2011, from http://www.cipo.ic.gc.ca.