Great businesses start with great ideas. But how do you stop other people stealing your ideas? We ask the experts how to use intellectual property law.
There isn’t much that Jenni Rutter and Ashley Johnson of Kensington Swan haven’t seen in the world of business wars.
From a simple ‘buzz-off’ letter from a rival, to a million-dollar international court battle, they’ve seen Kiwis make blunders by borrowing others’ ideas, and also becoming the victims of overseas fraudsters.
They stole your secrets
They say the smartest businesses protect their ideas and brands from day one.
“One of the first and most useful documents any entrepreneur should have is a non-disclosure agreement.”
An NDA is a contract you ask people to sign that legally prevents them telling your business secrets.
Friends to enemies?
She says early collaborations between friends can quickly turn sour.
“Collaboration is a beautiful thing, and it’s rare for a new business to get off the ground with only one creative genius behind it.
“But look out for having too many cooks in the kitchen, especially if you’re collaborating on copyright works like source code, artistic works, and written works with people who aren’t your employees.”
She says it’s safest to get a signed agreement saying who owns the work before the project kicks off, or those people might claim to be part-owners.
Don’t share too early
Timing is a big deal in the early days when you’re looking to patent your bright idea.
Inventions qualify for patent protection only if they’re ‘novel’, so don’t go public too soon with your idea for a new invention. Public disclosure kills novelty.
That includes putting a video on YouTube or photos of your invention up on your website.
Avoid messing up early
“We spend a lot of time helping clients deal with IP disputes,” says Johnson. “Sometimes people intentionally copy the work of others – but sometimes things just look or sound similar by coincidence. Either scenario can be an expensive problem.”
First check your new product name isn’t someone else’s registered trademark.
A thorough search should show you if you’re about to tread on another company’s toes.
“The free Onecheck website is a good place to start to get a very basic idea of whether a brand name is available,” says Johnson. Or get an IP expert to do a full search for you.
Don’t steal from the internet
Many people still think they can borrow a photo, design or text from a website, thinking it’s ‘in the public domain’. It’s not.
“Such a huge amount of copying from the internet goes on without being stopped that people often assume it’s simply a free-for-all,” she says.
There are businesses set up just to catch you out. They track plagiarism on the Internet and extract fees from people who have copied without permission.
They’re using my idea!
If you see another business sailing too close to your brand or invention, act quickly, says Johnson.
“The longer you leave an issue, the more chance the other person will establish stronger rights and be more difficult to shut down.”
It will help your case if there’s confusion in the market. Keep a record of any misdirected emails, Facebook mentions, phone calls, and even letters, she says. Give them to your IP lawyer.
Any claims you make in marketing need to be accurate and you must be able to prove they were true when you made them.
Be especially careful if you’re comparing your product with a competitor’s. That’s a really high-risk area, says Johnson, because your competitor might change the feature that’s compared.
Got a warning letter? You may be tempted to take a do-it-yourself approach, but the pair say it’s wise to involve an expert early. It can save you money and time in the long run.
If you’re hoping to sell your product overseas, think about your future markets early on.
“Unfortunately, intellectual property registered in New Zealand will not protect you overseas, as there’s no such thing as worldwide IP protection,” says Rutter.
“Ideally, pay for freedom-to-operate searches. It’s crucial to know what your competitors are doing, whether anyone’s doing the same or a similar thing to you, before you enter.”
First published 10 December 2018
Story by Brenda Ward
This article does not contain any financial advice and has not taken into account any particular person’s circumstances. Before relying on it, we recommend you speak with a financial adviser. This story reflects the views of the contributor only. Content comes from sources that we consider are accurate, but we do not guarantee that the content is accurate.
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