Protecting your intellectual property is crucial because it could prevent your product or design being ripped off later – a key lesson learnt by two business owners who were both recently involved in spats with Woolworths.
Last month, Small Business Connect featured Mike Schmidt, owner of Frankie’s Olde Soft Drink Company. Schmidt alleged that Woolworths copied his slogans and straplines after he pitched his ideas to them. He later met Woolworths’ chief executive, Ian Moir, and the matter was amicably resolved.
In a more recent case, Cape Town designer Euodia Roets provided the retailer with samples after they showed interest in her work and in her becoming a supplier. However, shortly after providing samples to Woolworths, Roets saw a similar design on a cushion at its Cavendish branch. Woolworths have since denied the allegations. More allegations later surfaced around whether Roets herself had copied the design.
The issue here is not around who is guilty of plagiarism or not, but rather how business owners can safeguard their products and ideas when pitching to a big business.
Vicky Stilwell, director at ENSafrica, who specialises in intellectual property (IP) law, says business owners first need to seek advice from a specialist IP lawyer to determine whether the idea can be protected as patents, trademarks, registered designs or other similar registerable IP rights.
“Any such protection should be put in place before pitching the idea to any potential investors or customers,” says Stilwell.
She explains that copyright is not registered in South Africa; it comes into existence automatically if certain conditions are met.
These conditions are that the product must be original (a product of the person’s own skill and labour), must exist in material form, and the producer must be a South African citizen or resident.
“From a practical perspective, the initial pitch should contain a broad description of the idea and the specific methodologies, systems and/or technologies should not be disclosed until negotiations progress and has signed a non-disclosure agreement (NDA),” says Stilwell.
An NDA is a legal contract between two parties with the aim of protecting confidential material. Appropriate copyright notices should also be included on all documentation. Stilwell says business owners can have an attorney create an NDA template and can then just amend for each business when pitching to them.
She says should a business failing to adhere to this, the only other thing to do would be to take action for breach of the NDA, provided that one was signed.
“An urgent interdict can also be sought to prevent breach of the NDA. If successful, costs could be awarded.”
Complaints can also be lodged with the Advertising Standards Authority of South Africa.