Is the Idea Protected? Intellectual Property Law
IS THE IDEA PROTECTED?
No, it is not protected!
You may have an idea for a new phone application, a collection nobody thought about, a design, a great commercial, an incredibly good novel, a superb logo, a great script or a great entrepreneurial IDEA. Before we say anything, we congratulate you for your great idea.
What's next? Especially in the beginning stage, businesses, entrepreneurs are often excited about the idea of promotion. Maybe you are already talking and developing your idea, whatever it is, with investors, editors, big brands and possible collaborators, by getting excited with the potentials of your idea. Maybe you are sharing your idea with your friend from the same profession or from the same industry.
After a while, all of a sudden one morning, you see that your genius idea being used by someone else and turned into a phone application, a project, a movie, a drawing or a design. The idea is yours, but the job is not yours. Furthermore, they copied your idea one-to-one! They stole your idea.
In this case, as in every theft, you apply to a lawyer to get what you are deserve and ask:
- They stole my idea. What can we do?
- Find a new idea because the idea is not protected.
It has also been adopted in international texts that the pure idea cannot benefit from legal protection. As stated in the Trade Related Intellectual Property Agreement (TRIPS) Art.9 p.2, copyright protects the expression of the ideas, not the idea itself. As a matter of fact, World Intellectual Property Organization (WIPO) Copyright Agreement Art.2, European Council (EC) Directive1 no: 122/43 dated 17.05.1991, and Bern Convention Art.2 p.1, it has been stated that “… regardless of the form of expression” the abstract forms of the ideas will not be protected. In this review article, it is aimed to show, under which conditions the idea can be protected and evaluate it within the scope of intellectual and industrial rights.
Your idea is abstract as a thought. The thoughts of 7 billion 823 million 618 thousand people in the world should go around freely and because of the freedom of speech, there is nothing to be done to limit the exchange of ideas. Anyone may come up with great ideas, the question is what you do with your idea. For example, you can protect Michelangelo’s Statue of David, but you cannot protect the biblical idea of making a statue of David or a naked male statue, who toppled a giant by throwing rocks at his forehead. If the idea was protected, it would be just a novel about the love of rich girl and the poor boy. Only one person could write or allowed to write a book on the subject. Such a limited production would mean the cessation of production in the fields of art, design, culture and industry. We think none of us want that.
An idea becomes “worthwhile to be protected under intellectual property law” as a result of the mental work and creative thinking ability of a person only if it meets certain conditions. Protecting your rights on the idea is only possible when your idea becomes concrete, perceptible by other people and fulfils certain conditions. Of course, the scope and the limit of protection also differ according to the nature of each concrete event. Protecting the intellectual property or the ability to protect ideas properly within a business has been identified as a key component in the economic growth of a business.
WHAT SHOULD I DO BEFORE I DISCLOSE MY IDEA?
Sign a Confidentiality Agreement with your collaborators before you share all kinds of verbal, written data, information, design, drawing, presentation, etc. regarding your idea and initiative.
The confidentiality agreement is the information and document that is clearly stated to be confidential about the project or shared business between the parties and it is the contract that ensures that it is not disclosed to any third party unless the person's consent is received. This contractual binding will be your shield to protect your opinion. The confidentiality agreement also provides a space where you can freely determine all conditions as required by the freedom of the contract and within this scope, the idea, project, design, method, a new fashion show concept, a movie or documentary idea will be protected before it is concretized, and the other party will protect your idea, project and will not be able to share it with the third parties; If s(he) shares it, s(he) will bear the consequences. Gentlemen’s agreements, on the other hand, are non-binding and define the reciprocal, ethical and goodwill relationship in accordance with the customary practices. Acts contrary to the provisions of the gentlemen's agreement are prohibited “morally".
In many industries, the request to sign a contract is not discussed during the exchange of ideas and project design, as it is perceived negatively or ignored. Sometimes, the need for an investor or be afraid to lose the investor holds us back from signing a contract. Not to forget, the legal framework and defining certain relationships are safest for the parties.
Ideally, a confidentiality agreement is to be signed in the beginning, to protect the entire process from the creation of the idea to the project design and the product in writing. This includes investors, employees, sponsors, all third parties and institutions you cooperate.
Let’s say, you designed a shoe and negotiating with a well-known brand. We strongly recommend that you sign a confidentiality agreement before submitting your designs. It is also very important that any information you present to the other party is documented physically or digitally and / or can be documented in a way to prove the document is submitted by you. Such as E-mail, presentations, recordings… All these are helpful evidences. Even if the contract has not been signed, it is important to pay attention to execute the whole process in a written and provable manner.
WHAT SHOULD I DO TO PROTECT MY IDEA?
To protect and intellectual product, it needs to be a work; It must possess objective and subjective elements. All kinds of ideas and art products that bear the characteristics of their owner such as in science and literature, music, fine arts or movies are considered “works”. The subjective element feature can be defined in the narrow sense as originality, innovation. “Intellectual effort differs the outcome of such an activity from the mundane results we see everywhere every day. We are surrounded by products such as buildings, photographs, writings, lessons taught, information given, dances, sketches drawn by common people and common professionals. None of these are the product of a particular intellectual effort and mind "2.
On the other hand, objective element is a factor which determines the concretization and its category. A creative, original idea must be embodied so that it can be included in one of the genres of science and literature, musical, fine art and movie works. The categories listed in the Law on Intellectual and Artistic Works are limited. In international legislation, the scope of protection in terms of products has been expanded within the scope of intellectual property by using the expression of visual and audio works.
If you have a unique collection idea of your own that breaks a new ground in the fashion industry, first draw and design the collection and make it two or three dimensional. Your idea is now concrete and if it has original, creative and has characteristics, it will benefit from protection as a work of science, literature or fine art. In this context, your design idea will not be implemented or used by someone else. Such designs can also be registered as designs if they meet the requirements.
In terms of intellectual property rights, you do not need “registration” to have rights over your creations. Creating a work is a verb. When the work is created -if it carries the conditions of the law- it is created. The quality of your work remains intact either you and / or until the other party questions it in the court.
To prove that the creation belongs to you, even though there are programs which you can fix the date and put a timestamp on your works; especially for the works that are expressed by language and in writing and also for the sketches, designs, drawings, two-dimensional designs, you may consider sending yourself a registered post, which may be primitive but effective. The important point is that you should not open this registered mail. On the other hand, optional registration is another way to prove the ownership.
The registration is the essential condition of the industrial rights to prove the rights; we see that at patent, brand and design more often. Brands cannot be patented; they are registered at the trademark offices. Movie scripts cannot be patented. Furthermore, Champagne is the geographic region in France where the sparkling wine Champagne is produced which has a geographic mark. All other sparkling wines are simply sparkling wines and not champagne.
WHAT ARE THESE INDUSTRIAL RIGHTS?
Industrial rights are very important to your initiative. It is essential for your success to know the protection methods you need within the scope of intellectual property law in the initiative strategy you have determined. Industrial rights are trademarks, geographical indications, designs, patents, utility models and traditional product names. In terms of fashion industry, brands, designs and patents are important industrial rights and at the same time they are capital in kind for companies.
You are an entrepreneur and you have an invention. Then what you need is patent registration. It is not enough just to have an invention. Your invention must be new, have an inventive step and be applicable to industry. You have designed a fabric whose colour changes according to the light ratio, you can protect your design with a design registration. The design may include the total product or a part of it such as form, colour, material, appearance, design; it can cover everything about appearance. It does not have to be aesthetic or functional but must be new and distinctive. The differentiating elements of your business from others are your products, your institutional identity, quality of services and products which in total builds up your brand value. As long as it is shown at the registry, the brand may include all marks including the names of persons, phrases, forms, colours, letters, numbers, sounds and the forms of the products or the packaging which differentiate your company from others. Registration of your trademark is the best way to protect the investments you make in your brand and your business. Trademark right is quite an active field and the fact that the law varies according to the nature of the concrete event is also valid in this field. As a rule, it is not possible for a colour to be specific to a brand in the fashion industry. However, where the colour is used is very important. Remember, Christian Louboutin and red soles…
Within the scope of intellectual and industrial rights, if you take the right steps while still at the idea stage, you will have exclusive rights over your intellectual product within the framework of protection periods and you can protect the product that is embodied as a result of your idea. Within this context, you will have the rights that can be summarized as cessation of acts of infringement, elimination of infringement and compensation for material and moral damage, seizure of products that constitute infringement and recognition of property rights on them, deletion of trademarks on products, destruction of products, public announcement of infringement and various amounts of imprisonment and fines. Then, you become an entrepreneur and enjoy the comprehensive legal protection.
Att. Burcu Kaya, LL.M.
2 Tekinalp, Ünal, Intellectual Property Law, 5. Edition, Vedat Publishing, İstanbul 2012 p.60
