How to protect a concept?

Published onOctober 2014

As you may know, protecting a concept in France is not an easy task, mainly because a concept is a general notion or idea and because abstract ideas cannot be protected by copyright and even less by industrial property titles such as patents, trademarks or designs.

Of course, even if a concept cannot be legally protected by itself or for itself, you can still achieve legal protection through indirect means. You can file a trademark to protect the name of the concept if it distinctive; you can file a patent to protect the product or the process if it is new and inventive; you can file one or several designs if the concept results in esthetic choices; you can have copyright protection if some tangible elements of the concept are original; you can manage the specific know-how attached to the concept…

Eventually, provided every appropriate steps and measures have been taken, you may also draft contracts and agreements to grant or assign your rights totally or partially to third parties.

But IP rights are not a magical solution to change a banal idea into a profitable concept.

In a recent case, a French couple had been seduced by a concept which consisted in investing in or buying apartments, renovating them or dividing them into several lots, and then renting them to third parties. The couple signed two agreements with the “owner” of the concept. One agreement was a license granting them the right to use the trademarked name of the concept. The other agreement was a license granting them the right to use the concept itself.

After a while, the couple had lost a lot of money and tried to have the latter agreement cancelled for being devoid of object or substance, arguing there was no concept whatsoever merely a marketing method. The Court of Appeals of Paris refused to cancel the license agreement over the concept on the grounds that it had an object since a trademark had been duly registered.

The Cour de cassation, which is the Highest Civil court in France, had a different opinion. On February 04, 2014, the Court cancelled the prior decision after finding that there were indeed two agreements. For the Court, the license agreement on the trademark may have an object because a trademark was duly registered but the license agreement on the concept may well be devoid of any substance as the concept itself…

What you need to remember

When it comes to protecting a concept, one must focus on protecting the elements and the contents of the concept as much as (if not more than) the concept itself.

When it comes to investing in a concept, one must be very careful of what the contents of the concept are rather than examining only the cover.

© INSCRIPTA