Protecting your startup idea: intellectual property and confidentiality

Can you protect an idea?

The generally accepted principle is that ideas are free for all to use: nobody can own the idea of a delivery app or a rental service, and only the concrete form that idea takes can be the subject of rights.

This means another team can legally work on an idea close to yours. What makes the difference is the quality of execution, knowledge of the customers, speed and the team.

In France, copyright protects a work of the mind from the mere fact of its creation (Intellectual Property Code, article L111-1), and a patent requires an invention that is new, involves an inventive step and is capable of industrial application (article L611-10). The INPI’s e-Soleau service lets you date a creation, but it does not grant any intellectual property right.

Which tools protect what a startup creates?

Software is in principle protected by copyright. Patent protection for software is much more limited and depends on there being a technical effect, a question to look into with a specialist.

How do you date and prove your creations?

Copyright exists without registration, but in a dispute you have to prove who created what and when. There are several ways to build up that evidence.

• Proof-of-date services such as those offered in France by the INPI, like the Soleau envelope, which let you date a document describing a creation.
• Depositing material with a bailiff (in France, a commissaire de justice) or another trusted third party.
• The history of a code version control system, which records every change with its date and author.
• Dated written exchanges: emails, meeting notes, time-stamped shared documents.

This evidence does not create any right over an idea. It serves to establish that a concrete creation came first if it is ever challenged.

When should you use a non-disclosure agreement?

A non-disclosure agreement, often called an NDA, commits the person receiving information not to disclose it or use it outside a defined scope. It is useful for genuinely sensitive information.

• ✓Before sharing source code, a technical process, customer data or specific know-how.
• ✓With an industrial partner or a contractor who has access to strategic information.
• ✓With a future co-founder, once discussions become concrete and sensitive material is exchanged.

Conversely, asking for an NDA for a first general presentation is often frowned upon, particularly by investors, who see many similar projects and generally refuse to sign one at that stage.

• Define precisely which information is covered.
• Specify the permitted use and how long the obligation lasts.
• Set out what happens to the documents when discussions end.
• Keep a record of the information actually shared.

Does the company really own what it uses?

This is the most frequently overlooked point: rights in a creation belong in principle to the person who made it, unless there is a contract or a specific rule. Code written by a co-founder before the company was set up, or by a freelance contractor, does not automatically become the startup’s property.

1. 1List everything the company uses: code, design, brand, content, databases, domain names.
2. 2Identify who created each item and in what capacity: co-founder, employee, intern, contractor.
3. 3Have written, precise assignments of rights signed where needed, especially by contractors and by co-founders for work done beforehand.
4. 4Register the trademark in the company’s name and reserve the domain names in its name.
5. 5Set out in the shareholders’ agreement what happens to intellectual property if a founder leaves.

These checks are part of any due diligence, so it is better to sort them out early.