An idea can only be protected by the laws of intellectual property (IP) if it has been materialized and fulfils the respective legal requirements of IP. So, the reality, is if the idea is just mere imagination, it cannot be protected by IP laws.
Protecting an Idea Through Patent Registration
For instance, the mere idea of “space travelling ship” cannot be monopolized by anyone. It can only be protected if you have invented an actual spaceship. In this case, you may register a patent for your invention, ie. the spaceship, by showing to the Patent Office how to build it, the components needed, the structure, the way of manufacturing it & etc.
Even if you have successfully registered a patent, it does not mean others are forbidden from using or inventing another new spaceship. Others are allowed to use spaceship which do not fall within the claims of your patent registration, or they could also register another patent if their spaceship fulfil the patentability requirements, ie. (i) novelty, (ii) involving inventive steps and (iii) industrially applicable.
In that case, the appropriate strategy is to try to make the scope of claims in your patent registration as wide as possible. If you have invented an improved or more advanced version of your invention, quickly file another patent to widen the scope of protection for your idea.
Protecting an Idea Through Trademark Registration
Another instance is you have an idea to use a tiger to represent your business, in this case you may register your tiger logo as your trademark.
Bear in mind that the registration of your tiger logo does not prevent others from using another tiger as their trademark. A tiger can be presented in many ways. It can a tiger which is cute, fierce, with only a face, with full body and many more.
Assuming your trademark is a tiger with a smiley face only, others could register another trademark with a tiger presented in full body in running motion.
According to the Relative Grounds for Refusal of Registration under Section 24 of the Malaysian Trademarks Act, a trademark will be refused from registration if it is identical or confusingly similar with an earlier mark. Therefore, the deciding factor for judging two trademarks are identical or confusingly similar is by considering the surrounding circumstances, and not idea alone. Nevertheless, the underlying idea can be one of the contributing factors in deciding whether two trademarks are confusingly similar.
It is noteworthy that you may register multiple trademarks with different variations of tiger logo. By doing that, you can expand your coverage of protection for your trademark.
Protecting an Idea Through Copyright
If you have written an article, book or computer software, composed a song, or painted a drawing, they can be protected as copyright. But, we should note that the protection of copyright extends to the expression of these work, not the underlying idea.
It is expressly provided in Section 7(2A) of the Malaysian Copyright Act 1987 that “Copyright protection shall not extend to any idea, procedure, method of operation or mathematical concept as such”
It is further provided by Section 7(3) of the Malaysian Copyright Act 1987 that “a literary, musical or artistic work shall not be eligible for copyright unless, (a) sufficient effort has been expended to make the word original in character; and (b) the work has been written down, recorded or otherwise reduced into material form”.
Let’s assume that you have written a science-fiction about space-travel to Mars. Based on the above provisions, the mere idea of space-travel to Mars is not protected by copyright, which means you can’t monopolies this idea and stop others from writing another book that talks about space-travel to Mars. However, the written content, storyline and characters in your book may be protected under copyright, provided it satisfies the requirements under Section 7(3) of the Copyright Act.
Similarly, if you have written a computer software for payment processing. The source code and user interface within the software may be protected as copyright. But not the underlying idea of “payment processing”. Others can still write another software for payment processing by writing another set of codes which may be more advance than your software. Nevertheless, certainly others cannot copy your codes.
Different from other area of IP, protection of copyright is automatic, and registration is not compulsory. However, it is always prudent to have it registered in order to have a documentary proof of ownership because you don’t know when you would need it. In Malaysia, a copyright can be registered by way of voluntary notification.
Protecting an Idea Through Industrial Design Registration
Let’s say you have designed a cylinder-shaped bottle. Pursuant to the Malaysian Industrial Design Act 1996, the protection of industrial design is granted to the shape, configuration, pattern or ornament applied to an article.
Similar as above, you won’t be able to claim that the entire idea of having a cylinder-shaped bottle is yours. Others could still use the underlying idea of cylinder-shape for their bottle, but they shall not copy the shape, configuration, pattern or ornament applied to your bottle if you have secured an industrial design registration for your bottle.
If there are multiple variations if your design, it is always better to secure more registrations in order to widen the scope of protection.
Conclusion
So, the answer for “can I protect my idea” could be yes and no.
The answer is NO, if it is a mere imaginative idea.
The answer is YES, if the idea has been materialized into tangible form and it fulfils the requirements of the respective IP Laws. Upon successful registration, it will be protected according to scope of registration. For wider scope of protection, it is always better to expand the registration.
Are you looking into protecting your trademark, patent, design or copyright? Contact us now :)
Written by,
Registered Trademark, Patent and Design Agent
LL.B (HONS), CLP
Advocate & Solicitor (Non-Practising)
Disclaimer: The above information is merely for general sharing and does not constitute any legal advice. Readers are advised to seek individual advice from professionals.
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