As a result of the media interest that the Frankie’s vs Woolworths matter has received in South Africa, a number of small business enterprise owners are asking whether there is any means of protecting their ideas or business concepts, or those embodied in their products.

Although it is not possible to protect “an idea”, it is possible to protect the material expression of that idea. There are a few ways in which you can protect the material expression of your idea.

If the idea results in the creation of a new invention then you may be able to protect the prototype by registering a patent over it. Patents can be obtained for new inventions which can be used in trade or industry or agriculture. It is important, however, that the prototype be kept secret until a patent application has been filed. Disclosing the prototype prior to filing a patent application could invalidate your patent application. A patent once granted will entitle you to prevent other persons from making, using or even importing the invention into the country, so that you enjoy the whole profit arising from the invention.  

Another manner in which ideas can be protected is through their registration as trade marks, if appropriate. A new business name, the name of a product, the product logo, the get-up and even the product container – all of these can be registered and protected as trade marks. A trade mark is used to distinguish one trader’s goods or services from those of other traders. Therefore, in order to qualify for registration, a trade mark must be capable of distinguishing the goods or services in question from the same or similar goods or services offered by competitors.

Another way in which you can protect an idea is by reducing it to writing. If you have a song in your mind, write down the lyrics or the musical notes. Copyright will automatically vest in your written work and you can rely on copyright laws and enforce them against third parties who copy the work without your permission. Copyright protection can also be obtained in artistic works, sound recordings, cinematograph films and computer programs. Copyright subsists automatically and there is no provision for registration of copyright in South Africa.  

In a number of instances, however, the idea is still in its initial stages and one is required to approach a financial institution or a big player in the industry and pitch the idea to it with the hope of the institution providing finance to further develop or exploit the idea. How do you ensure that the institution does not listen to your pitch then steal your idea or change it slightly and call it their own? In this case, it is usually not advisable to discuss your ideas with third parties or potential investors until you have obtained a signed confidentiality or non-disclosure agreement from this third party. Such an agreement will provide you with a cause of action in the event that your idea is used or disclosed without your permission.  

Coming up with good financially viable ideas is not always easy and is often costly, so always ensure that your ideas are protected as far as possible.