During wars, the expression – “loose lips sink ships” was formulated to remind everyone how unguarded conversations could quickly become actionable intelligence for the enemy. This is still true today particularly in ecosystems that are as dynamic and ever changing as electronic commerce and tech. In these spheres, ideas are currency and entrepreneurs are always looking to innovate and create value.
Never forget that the law does not protect a mere idea. What the law recognises is not the abstract concept, but the representation of this idea in a creative and original way – which we call Intellectual Property or IP. An inventor who carelessly shares his idea or even an actual invention with potential investors or even friends or family before obtaining the protection of the law may find that he has lost first mover advantage even before he is able to push out a viable product.
The origin stories of many runaway successes in the tech world (including Facebook depending on who you believe), are littered with examples of entrepreneurs who shared an idea with third parties, software or website developers, potential investors, or prospective co-founders before the ideas become ‘protectable’ property; and eventually, as a result, lost out on a lot of money.
So what to do when you have that eureka moment? The very first thing to do once you have an idea with potential for commercialisation is to bounce your ideas off legal advisers (who are bound by the codes of privilege and professional ethics and are thus safe to talk to) who have some familiarity with the market. With this kind of preliminary legal advice, you can determine which kind of IP protection you can seek to obtain.
To provide some general guidance, creators of literature, comics, software code, board games, videos and music may look to protection by way of copyright. As a principle, copyright protection is automatic, however, the Nigerian Copyrights Commission also maintains a register for holders of copyright; and this may provide additional comfort to inventors. The challenge with copyright, however, is that in relation to certain kinds of products, for example, much of what is produced by the entertainment industry, the law is very difficult to enforce.
It is possible to obtain double protection for some kinds of property. Software, for example, can be protected at the level of the copyright of the coder/developer over the source or object codes; and also, based on the application of Nigerian patent law, at the level of patent protection. Patents operate to protect the process that the software implements. Patent protection ensures you have absolute monopoly over the patented process, but can be quite technical, and is a bit expensive.
Trademark protection on the other hand, is relevant for all businesses – although they may be more important if your business is public (commonly business to customer rather than business to business); or depends on volume. A business may trademark its brand name, domain name and any distinctive mark that it trades with or is associated with. Registered trademarks are valuable because of the goodwill associated with the mark; and established brands create value by licensing the use of their trademarks; and this can add value to a start-up looking to attract investment. While the enforcement of trademarks can be problematic, particularly in Nigeria, the costs of failing to register the trademark of a business with high potential for growth can, likewise, be quite high.
In sum, creating and protecting intellectual property is an important milestone when looking to commercialise your idea. Unfortunately, much of the time, entrepreneurs only seek legal assistance and advice after the ship has sunk, i.e. someone has begun exploiting their intellectual property without permission. It is obviously far wiser to take necessary action to avoid the torpedo in the first place.
About the authors: Opeoluwa Osinubi and Adedamilotun Aderemi are Associates in the Firm’s practice group dedicated to new growth areas of the economy including start-up advisory.
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