Supply chain · 2 October 2017

How to protect your intellectual property when pitching to a national retailer

Refrigerated foods in store.
Before pitching to a national retailer, it’s important to keep detailed records of your ideas

Over the past year, our regular supply chain series has been helping small suppliers find out exactly what they need to know to start selling to Britain’s most recognisable brands. Now, our legal expert responds to one reader eager to protect their business idea when pitching to a national retailer.

“I would like to directly approach John Lewis (starting with an email and then approaching stores directly). However, although my company and product name is trademarked, I am not going to patent it, as it is an idea rather than wholly new invention.

“Although it would be unethical practice, could John Lewis then ‘copy’ my idea, or do I need to assume some good faith as stated in its ethos? I obviously don’t feel I can email with a disclaimer – I’m sure they wouldn’t even bother reading on.

“Is there any protection that covers me if I show or deliver the product to John Lewis?”

Well done on protecting the name of your product, that’s a good start when pitching to a national retailer like John Lewis.

Protecting ideas is always difficult, as intellectual property rights protect the expression of ideas, rather than the idea itself. That means you must turn the idea into something before it gains any protection. The best way to protect ideas is to keep them confidential. Obviously, this can be difficult when you want to share them with someone like John Lewis.

In an ideal world, John Lewis would sign a non-disclosure agreement (NDA) prior to you disclosing information to it. However, I don’t know what its policy is on this and many large companies refuse to sign NDAs in case they are already working on a similar product completely independent of you.

Also, companies such as John Lewis will be inundated with enquiries from people wanting it to consider their products and it just wouldn’t be practical to enter into an NDA with everyone.

Everything you need to know about non-disclosure agreements

Patenting

Is there a possibility that you may be able to patent your product in the future? If so, then it is essential that you do maintain confidentiality and so you mustn’t disclose how it works. If you do disclose this information, you will lose the ability to register a patent later. In this situation, an NDA would be essential.

With many ideas I see, there are different levels of information that can be shared. There is a general level where you can talk about your product in broad terms, what it does, the benefits it provides etc. This information can usually be shared freely and won’t compromise you if it was used by someone else.

Then there is specific, detailed information about your product – for example, details of how it works, specifications, etc. You will probably want to be more careful with how this is shared because if it is used by someone else it could put you at a serious disadvantage. This is also the information that is likely to be patentable so this would be the point to enter into an NDA.

Find out exactly what a Holland & Barrett buyer is looking for from a young brand

If you are really concerned about your idea being stolen could you start by sharing some general information to gauge their interest? Then, if they are keen to follow up share some additional information once more of a relationship has been established (or an NDA has been signed).

If your idea was stolen, you would potentially have a claim against them but you would need to prove that it was your idea and that it was copied from you. Therefore, keep detailed records about your idea – i.e., when it was created, plans, drawings etc.

A top tip is to post these to yourself recorded delivery, but don’t open the envelope. Do this before you disclose any information to John Lewis. Then, if there ever was a dispute, you have some strong evidence that you created this idea before the date the envelope was posted.

Take a look back over the brands we’ve covered in our supply chain series:

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ABOUT THE EXPERT

David Walker is the founder of Grid Law, a firm which first targeted the motorsport industry – advising on sponsorship deals, new contracts and building of personal brands. He has now expanded his remit to include entrepreneurs, aiding with contract law, dispute resolution and protecting and defending intellectual property rights.

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If you’ve found the article above useful, but have a more detailed and bespoke question, then please feel free to submit a query to our expert. We at Business Advice will get in contact with them on your behalf and arrange for a personalised response. These questions and answers will then be collated on the site for any other readers who have similar queries.

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