Startup Growth Series

A startup lawyer's advice on how to protect your ideas – Part 2

Credit: Cynthia Igodo

Cynthia Igodo is a general practice lawyer with interest in payments, fintech, cyber-fraud and telecommunications law. She was formerly the lead legal adviser at VoguePay. You can connect with her on LinkedIn or shoot her a mail at karcyyn@yahoo.com

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There was ​ an interesting episode on Dragon’s Den.

Season 1, Episode 2 of Suits.

The first question the Dragons ask was ​ “Do you have a patent for it?”

The takeaway is that a patent shows that you believe enough in your invention to spend some of your own money on it.

Legal structures to o protect your intellectual property 

Here are some legal vehicles you can use to protect your intellectual property

1. Patent

If your idea meets the criteria for patenting, and/or if you have a working prototype setup, then you should apply for a patent before you initiate discussions with investors.

To be patent-able, your invention needs to meet the following criteria:

  • Must be new,
  • Must have an inventive step that is not obvious to someone with knowledge and experience in the subject,
  • Must be capable of being made or used in some kind of industry and not be a scientific or mathematical discovery, theory or method, a literary, dramatic, musical or artistic work, a way of performing a mental act, playing a game or doing business, the presentation of information, or some computer programs, an animal or plant variety, a method of medical treatment or diagnosis,
  • And it must not be contrary to public policy or morality.

The grant of a patent gives the inventor a temporary but exclusive monopoly over the commercial exploitation of that invention, with the right to exclude others from making, using, or selling the claimed invention in the country of registration without their consent, for the duration of the patent.

It is important to note that patent applies on a priority basis.

The first person to obtain the patent, whether or not the actual inventor, becomes the holder of the patent.

2. Copyright

Copyright protection applies to ideas for a creative work, such as a manuscript or film or a software or program.

To be eligible for copyright protection, the idea must be:

● An original work-in that sufficient effort has been expended in
creating the work;
● Fixed in any definite medium of expression.

The Nigerian Copyright Commission (NCC) has a voluntary copyright registration scheme called the ​ Nigerian Copyright e-Registration System (NCeRS).

It is designed to enable the owner of the idea notify the NCC of the creation and existence of his
idea. Registration with the NCC serves as evidence of your ownership of the idea in an action for infringement.

You can either submit your application physically or by filling an online form together with 2 copies of your work and payment of the prescribed fees​ .

Copyright protection gives the owner the exclusive right to authorize or prohibit the reproduction, distribution, translation, adaptation, broadcasting or communication of the idea with the right to exclude others without the consent of the creator, for the duration of the copyright.

However, there are instances of fair use where the copyright of a creator can be used for educational, research, social and other public policy considerations without his consent provided that the creator is duly acknowledged as the owner or author.

3. Trademark

Trademark applies to unique sign, logo, slogan, design, name or domain name which identifies your ideas and would set it apart.

Idea that can be covered with trademark protection must:

  • Be distinctive-in that it can be distinguished as identifying a particular
    product or service;
  • Not be deceptive-not likely to mislead the public as to the nature or quality of the product;
  • Not be contrary to public policy or order;
  • Not be identical or confusingly similar to an existing trademark.

To enjoy trademark protection, your idea must be registered in the trademark register of the Commercial Law Department of the Ministry of Trade and Investment.

Your lawyer can help with processing your trademark registration.

Once you register your trademark with the trademark office, you would enjoy the exclusive right to use your idea to identify goods or service or to authorize another to use it in return for payment.

However, if you don’t want to register your trademark, protection will still apply if the trademark is so well-known, distinctive and has a reputation in the marketplace.

4. Trade secrets

Trade secret protects the invention by keeping it secret and relying on the protection offered by its confidentiality.

Trade secret protection is most suitable for ‘know-how’ i.e. the technical expertise to use a given technology or product in the most effective way. Thus, you can patent your invention while protecting your ‘know-how’ through trade secret.

A very good example of the effectiveness and importance of trade secret is its use by Coca Cola.

There is no patent filed for the Coca Cola formula. However, its trade secret has been protected for over 100 years and no one has figured out the formula. Thus, it continues to successfully maintain the secrecy of its formula as trade secrets endures longer than patent.

The problem with trade secret is that once the invention is in the public and dismantled or figured out by curious cats, the trade secret protection is lost.

A case of unfair competition with your trade secret can arise if your competition uses your trade secret to compete with you, or an investor or partner discloses your confidential information to your competition without your consent or someone uses your unregistered trademark for a product or service similar to that provided by you.

This can be prevented or mitigated.

You might be entitled to an action in unfair competition. Unfair competition seeks to protect against any act of competition contrary to honest practices in industrial and commercial matters.

 

5. International Protection

IP protection is mostly territorial.

It means the protection applies to where you register your IP or created your work.

If you anticipate that your ideas would cross the borders into another territory, it will require that you file for protection from infringement in that territory.

Though no worldwide protection exists for patent yet, you can  still file a single international application under the Patent Cooperation Treaty (PCT) that would result in a multitude of national applications.

In the next lesson....

In lesson 9, you will learn why it is important to make data-driven decision to measure your startup growth. Starting with Google Analytics (a free tool), you can get intelligence about your website visitors that will enable you to grow you business.

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