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Funny how the law protects even creations of our minds

17.09.2021
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Have you ever been served the corporate breakfast? Not one of those that you have at a morning conference or at that early morning client meeting. 

The corporate breakfast is that devastating feeling that comes from realizing that the brilliant business plan you pitched to your dream corporate partner is being used to make the ‘big buck’ and you are not getting any credit for it. 

If you have been served that breakfast, this is for you.

Intellectual property or IP

When trying to bring an idea to life, you may have to pitch your ideas or business plan to several potential investors, creditors, clients, or suppliers. 

However, some of these ideas and creations may be re-created by these potential investors to whom you may have pitched these ideas. The legal question is; does the law protect my IP? Or can I attach a monetary value to the creations of my mind? 

Intellectual property or IP refers to creations of the mind, such as inventions, literary and artistic works, designs and symbols, names, and images used in commerce.  

Intellectual property rights are private rights. Hence it is the primary responsibility of the right holder to seek remedies to protect those rights. 

Why you should use an NDA to protect your ideas?

Ideas are open property and as soon as you’ve told someone your idea it is no longer yours. That is why we use an NDA to bind the person hearing the idea into a contract to not disclose or use the idea since it’s the only available remedy as ideas cannot be owned in the same way that copyright or trademarks can. 

Protecting your Intellectual Property

Once you understand the value of your IP, the next question is ‘how do you go about protecting that value?’. A Non-disclosure Agreement or NDA is only one aspect of protecting your intellectual property. It keeps a lid on your ideas!

An NDA is a legal contract between at least two parties. It outlines classified materials such as a design or a business idea, data, or information that you wish to share with a third party for a certain purpose, which restricts that third party from reproducing it or disclosing it. 

An NDA is a vital document that every business, creative, or hustler needs. For entrepreneurs at the ideation stage of their business journey, an NDA protects your ideas and innovations from being reproduced without your consent or giving any credits to you.

For existing businesses or companies, an NDA could prevent an employee or a potential investor from disclosing confidential company information or innovation to competitors or a third party.

So you want to protect your idea via an NDA, but what exactly goes into such a document?

Firstly, the nature and extent of the confidential information you want to protect. 

This needs to be specified plainly, ideally in layman language. It is to ensure that, should the recipient breach the NDA, it would be clear to any reasonable person what intellectual property the NDA was drafted to protect. For example, you may state that you are trying to protect a business plan, a design, or an innovation.

Secondly, the time frame in which the provided information is to be kept confidential must be stated. 

This could be years, the lapse of a particular date, or upon the conclusion of a specific event. The time frame would ensure that the confidential information you seek to protect would be confidential until such a future time or event takes place. 

Thirdly, the parties to the NDA must be named. 

This ensures that the specific person(s) or entity, is bound to the terms of the NDA. If entering an NDA with an entity, it is vital to ensure that the employee or representative of the entity holds the necessary capacity to carry out such agreements and bind the entity to the NDA. Representatives of an entity that may bind an entity to a contract include; a director or owner, and in some cases, a manager. 

What does having an NDA guarantee?

When an NDA is concluded, the recipient agrees that it will not use the confidential information provided in any manner whatsoever. 

This includes any use with the intention or effect of denying you of any profit or other remuneration, credit, or ownership that would be expected to be derived from the use of the confidential information, except with prior specific agreement and consent being obtained from you in writing.

The NDA also ensures that the recipient will take all necessary steps to procure that its employees, professional advisors, agents, and consultants comply with this provision. 

An NDA could afford monetary remedies in the event of a breach of the agreement, or injunctive relief to stop any further use of the IP. Most importantly, the recipient will not be permitted to reproduce any works created, designed, or sourced from you, unless consented to by you in writing. Consequently, the recipient may not allow any other party to do so. 

Is an NDA Legally Binding?

NDAs are legally binding, which means they are legally enforceable contracts.

An NDA legally compels the recipient from disclosing, divulging, or releasing the confidential information shared with them. If there is a breach of the agreement, the party at fault will be held liable based on a breach of contract. 

Although the protection afforded by an NDA is limited to whatever you’ve included in the NDA, as opposed to a registered patent, copyright, or trademarks which can have wider protection, it is often the only means of protecting your IP while seeking potential investors, creditors, clients, or suppliers.

Should the recipient commit a breach of any of the provisions of the NDA, you are entitled to require that the recipient provides a remedy to the breach within a reasonable timeframe, as stated in the signed NDA. 

If the recipient fails to provide a remedy to the breach within the period specified in the notice stated in the NDA, you are entitled to enforce the performance of the provisions of this agreement by interdict or specific performance upon application to a court of competent jurisdiction.

Now that you have all you need, you can decide if you want to serve the corporate world dinner or you want to be served another corporate breakfast. 

Beatrice Alade – 17 September 2021

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