Some years ago at the Faculty of Law I was taught that ideas cannot be protected. I was told that ideas need to be developed and materialised in a work, invention or utility model. This way of seeing the world of ideas is completely incorrect.
Even now, in my profession, I see that there is a general lack of knowledge about this subject and that people are very confused and do not distinguish the boundaries between an idea, an invention and a work (especially in terms of IT software) and do not know what exactly intellectual property, industrial property, know-how or technology are.
We cannot explain all these concepts in an article as short as this, but I can explain what the most important thing is in my opinion: that an idea can be legally protected, even if it cannot be considered a protectable work as intellectual property (copyrights) or a protectable invention as industrial property (a patent or utility model).
The maximum protection that you can achieve for an idea is to keep it in your head and never let it out, either verbally or in writing. If it does not leave from within us, an idea is very well protected because a device to access our “mental server” has not yet been invented. However, if an idea is good and we want to benefit from it economically, at some time or another, we will need to explain it to someone… and here is where the problems start.
Before disclosing an idea to anyone, we must think about it three times over and plan how we will do this and what protective measures we should adopt. Therefore, the first thing we must do is go and see a lawyer specialised on the subject and ask for advice. We should not forget that lawyers have an ethical obligation of confidentiality.
Lawyers have different ways of protecting an idea, through confidentiality and non-competition documents, which must be signed by whoever receives the valuable information. However, the system I like the most, when it comes to an idea with potential of being really valuable, is to put it down in writing or in digital format for my client and deposit it at a Notary’s office.
I then tell the client that before he says anything to anyone he must make them sign the document that I have drafted and that, if they do not want to sign it, he should leave the meeting and forget about this person being a partner, investor, supplier, customer or whatever else he/she was going to be.
Indeed, an idea is not a work protected under the Spanish Intellectual Property Act 1 of 12 April 1996 nor is it under the Spanish Patent Act 11 of 20 March 1986, but if the person to whom the idea has been disclosed and who has directly or indirectly appropriated it has signed a confidentiality and non-competition agreement, this person will be held liable for the damages that this illegal conduct may cause, furthermore he can be forced to stop such conduct.
In this respect, the legal protection of ideas can mainly be found in Article 7.1 of the Spanish Civil Code and in the Spanish Fair Competition Act 3 of 10 January 1991, (LCD), which in its first article states that its object is to protect competition in the interest of all those who operate in the market and in Article 4 it states that all conduct that is objectively against the requirements for good faith is considered unfair.
Regarding the issue we are dealing with here, the article of the LCD that is of the most interest is Article 13, because it provides legal protection against violation of secrets. Furthermore, the violation of trade secrets is also regulated in Articles 278 to 280 of the Spanish Criminal Code as an offence, with penalties ranging from two to four years imprisonment.
Both the Spanish Fair Competition Act and the Criminal Code refer to trade secrets, but from case law and doctrine it can be deduced this does not only mean the secrets belonging to a company but also those that a natural person may have that could be related to a business activity. For example, a person’s idea or secret consisting of putting a stick into lollipops in order to be able to keep on licking them instead of needing to have them in your mouth, at a time when this did not exist, is a legally protected asset in order to protect fair competition among market operators.
Therefore, all of those who have an idea and think it could be economically valuable, before disclosing it, they should plan and provide protection for it, because otherwise somebody else will obtain the profits and sometimes a really good idea only comes up once in a lifetime.