Protection of a concept by alternative means

From the early stages of the concept, the first instinct of an entrepreneur is not to give out information to his or her interlocutors and to avoid distributing exhaustive business plans. Confidentiality is the best protection for an idea.

Next, it is advisable to describe this idea or innovation associated with the concept in a document that is kept secret, as detailed as possible, with all relevant material: diagrams, illustrations, photos, charters, intellectual property titles obtained, materialization, elements proving human and financial investments, an explanation of the innovative aspect, ideally with a market study (or market research) to demonstrate the novelty of the concept compared to the pre-existing ones. It is recommended to be assisted by consultants or lawyers to produce complete documentation. It is important to demonstrate the originality of the idea, the investments made, its economic potential and its added value, as these elements will be decisive in the event of a conflict.

However, it will often be necessary during the implementation of the concept to look for partners and investors, which means disclosing the concept.

It is therefore important to establish proof of anteriority to be able to demonstrate the ownership of the concept and its creation at a certain date, particularly in the event of a copy or future challenge by an unscrupulous former partner. Several means are possible, such as sending an unopened letter to oneself, filing a Soleau envelope with the INPI, obtaining a bailiff report or a certificate with a qualified electronic time stamp such as the certificate. It is up to the entrepreneur to decide which method is best suited to his/her needs (for more information, see our dedicated article).

This step is extremely important in the event of litigation for breach of confidentiality, but also in the event of unfair competition, as it constitutes an element of proof.

To communicate with third parties (employees, service providers, economic partners, financing, etc.) during the development and launch of the concept, it will be necessary to legally secure the exchanges with a confidentiality agreement (or Non-Disclosure Agreement – NDA),indicating the steps taken to secure the concept and to carefully store this contract. This demonstrates the entrepreneur’s vigilance in securing his/her concept in his/her communication and helps to dissuade potential competition. Violation of the agreement entitles the entrepreneur to damages.

Moreover, it is also possible to secure the concept in all the various contractsthat will be necessary during its life. Thus, a creator can, depending on the needs and in compliance with the law, include a non-competition clause, an exclusivity clause or an exploitation and/or improvement clause for an idea. Depending on the commercial success of the concept and if it becomes a franchise, its securing may also be included in the franchise agreement.

This contractualisation can be a source of security, but also of enhancement allowing the concept to gain economic value. The contractual tool, in addition to intellectual property (if applicable), is important to help building the commercial value of the concept.

This effort to concretise, secure and enhance the value by various means of what was initially an idea will enable you to claim the subsequent protection afforded by unfair competition.