How do we protect our idea?
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How do we protect our idea?
We just bought a domain looking to start up a new social music sharing site. The idea is unique and we cannot find it anywhere else on the web. We are looking in how to protect it. So far we believe that we would have to get a service mark and copyright on our idea. We cannot afford a patent, and were wondering if we should write a defensive publication instead and what aspects this would apply to. If you could give any ideas on how to protect our idea that would be greatly appreciated.
Asked on May 9, 2012 under Business Law, Minnesota
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 9 years ago | Contributor
There are no ways to protect ideas as a general matter:
1) You cannot patent an idea; what you can patent is a technique or process. So, for example, say you come up with new software for your site--you can patent the software to protect it, but you can't patent the basis idea. To use Amazon.com as an example: they could patent their software for taking and fulfiling customer orders, but can't patent the idea of selling products online.
2) Copyright protects a specific creative expression--a piece of writing, a graphic, even software code--but again, does not protect an idea. JK Rowlings copyrighted her "Harry Potter" novels; she could not copyright the idea of books about a teenage wizard or about a magic school.
3) Trademark protects a "mark"--an image, a slogan, etc.--which is used in commerce to identify the source of goods or products; but again, it does not protect an idea. Marvel Comics can trademark (and also copyright) their specific version of Thor; but they can't trademark (or copyright) the idea of a norse thunder god.
4) If you publish your idea, you give it to the world--since you can't protect it, anyone would be free to use it. And if you write something up but don't actually publish it, it is irrelevant.
What you *can* do is to protect you idea by contract against specific potential investors, employees, vendors, contractors, and business partners. Before sharing your idea with anyone, have them sign a confidentiality and non-disclosure agreement, which acknowledges that the idea is yours, is being disclosed only to pursue a possible business relationship, and that they may not use it for their own benefit or disclose it to anyone else. Confidentiality and non-disclosure agreements are enforceable against anyone who signs them; if you disclose your idea to someone who signed such an agreement and they misappopriate it, you could sue them for monetary damages and/or for a court order to stop them from using it.
Also, keep the information/idea confidential--do not disclose it to anyone who has not signed a confidentiality agreement. If you do let the idea get "out there," you may destroy its confidentiality, even as against those who have signed the agreement, because there is confidentiality obligation against publically available information.