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Small businesses with unique ideas have various options to protect themselves from big corporates and others stealing their intellectual property, legal experts have said.
Earlier this week, entrepreneur Shannon McLaughlin accused Woolworths of copying her baby carrier, Ubuntu Baba. After meeting with her, Woolworths later admitted that there were in fact "striking similarities" between their product and McLaughlin's and removed it from their shelves.
Elaine Bergenthuin, MD of De Beer Attorneys told Fin24 on Thursday that out of the various options available to entrepreneurs in terms of protecting their intellectual property, a patent was the most useful. The process, however, wasn't necessarily easy.
"It's a means to protect themselves (small businesses) from exploitation by larger corporates. Especially if they spent a lot of time and money on developing an idea," she said.
The process of getting a patent, however, could take a year, and the cost depends on the law firm used to get it. She said it could cost up to R40 000. It lasts for 20 years from the date of filing and can be renewed annually, Bergenthuin said.
Protecting an idea
Director at Norton Rose Fulbright Likonelo Magagula told Fin24 that if you want to register a patent, you would need to have an idea which no one in the world has come up with - but that this is not the only option available to small businesses.
She said in the case of Ubuntu Baba, McLaughlin does not need a patent, as she has a design which she can register with the Companies and Intellectual Property Commission (CIPC).
A design does not necessarily have to be completely new, like a patent, she explained.
For small businesses who do not know where to start, they can approach the CIPC, which has officers who can provide direction on how to protect an idea. They can determine if a patent or a design should be registered.
If an entrepreneur wants to approach a lawyer, Magagula advised going to a boutique Intellectual Property Firm as they would be best positioned to provide guidance.
Magagula also warned against approaching potential funders before going to an Intellectual Property lawyer.
"Before you knock on doors, invest in a lawyer. They are expensive - but so is having your idea out there and not having protection against someone copying it," she explained.
She said f you want to approach funders, make sure you have a provisional patent, if not a patent. A provisional patent is not a complete patent, but as an entrepreneur it will give you the protection you need to work on an idea and at the same time protect it from being stolen.
Magagula said there was no way that a potential funder could steal an idea if you have a provisional patent.
Non-disclosure agreements and Trademarks
If you can't get a provisional patent, then any potential funder or business partner you approach should at least sign a non-disclosure agreement, Magagula explained. The non-disclosure agreement should be specific about what can and cannot be done with the idea. This is so that, if the potential funder or business partner decides that they are no longer interested in the partnership, then they cannot "turn back" and start using the idea.
Small business owners can also consider registering a trademark - which is not limited to words - but can also be applicable to shapes. Ubuntu Baba can trademark the shape of the baby carrier for example, Magagula explained. "Trademarks last forever, and are subject to renewal every 10 years with the payment of a renewal fee," she said.
A product which you have started trading with, although not registered, can establish common law rights of protection. At this point, the product should have "acquired a reputation or goodwill by using a particular design or a particular name," Magagula said.
'Mountains' of evidence
However, if there should be any litigation, the amount of money required to defend intellectual property protected by common law rights would be astronomical," Magaula said.
"You need mountains of evidence to give to the court," she explained. But having registered a trademark or having a patent can strengthen your case, she said.
Similarly in a statement from De Beers Attorneys issued on Thursday, the law firm said that small businesses have a better chance at successful legal proceedings if their ideas are registered.
"Without registration, it’s harder to prove your case - it becomes much more complex and costly to go to court to prove that your design is one of a kind, if you have not previously registered that design," the statement read.
*UPDATE: This article was updated on January 14, 2019 at 18:00 with comment from Likonelo Magagula to reflect that trademarks are subject to renewal every 10 years, with a payment of renewal fee.
