I have a product idea and very rough prototype I want to take to a local 3D print/prototyping company to have a higher fidelity version made. I would of course not want them to make the 3D model available publicly or otherwise print/sell my idea or product. However, the product idea is very small/simple and in my eyes not yet worth pursuing a lawyer and fees to have an NDA or patent written up. In previous talks with this company they too prefer avoiding NDAs as they then have to consult their lawyers to insure it doesn't accidentally block them from working on other projects, etc. They did however assure me confidentiality over an email stating that anything we discuss will be a professional service and kept between us.

I read here: https://www.lawgives.com/guide/551c797e777777655d8e0000/What-Do-You-Mean-We-Have-A-Contract-How-to-Prevent-an-Email-Exchange-From-Inadvertently-Becoming-a-Binding-Contract that emails could constitute a legally binding contract. Would that promise of confidentiality be enforceable if they did leak my idea or product?

  • 2
    What jurisdiction are you in? Even if your email exchange doesn't amount to a contract, in the United Kingdom there may be an equitable duty of confidence. Your question raises a similar factual scenario to Coco v AN Clark (Engineers) Ltd [1968] FSR 415. – sjy Apr 24 '17 at 23:54
  • I agree that the jurisdiction would matter. NDA enforceability and confidentiality laws vary quite a bit from jurisdiction to jurisdiction both within the U.S. and internationally. – ohwilleke Jul 23 '17 at 22:40
  • @sjy The fact that the printers have promised in writing to maintain confidentiality would make it easier to pursue such a claim. – Martin Bonner Aug 23 '17 at 16:44

One option is to just trust and hope that they won't reveal something that you don't want revealed. At the other end of the spectrum, you could hire lawyers and negotiate a binding NDA, as part of the sales contract, and what you'd be getting is a reasonable professional opinion that the NDA does indeed have the desired effect. Or you could try to patent the object. The problem with the first option is that trust and hope are not legally enforceable. However, whatever arrangement you have with them does ultimately boil down to there being a contract: they provide an object based on your specifications, you provide them with money. For example, if you specify that you want it made in pink polystyrene but they make it in blue ABS, that would be contrary to the terms of the contract and you can insist that they do it right, or you can insist that you won't pay (and in the worst case, e.g. if you prepaid, you might have to sue them to recover your money). Other applicable scenarios would be your obligation to provide the specification in a certain way, or their obligation to create and deliver the object in a certain way / by a certain time. All of this is part of the low-key contract that you have with the firm. If there is something important to you, such as getting it delivered by a specific date, then you have to clearly identify that date in your discussion. If you don't, they they have the option to perform on the contract in any reasonable manner.

As that article points out, there is a wrong view of contracts out there that they are elaborate documents written and inspected by lawyers, signed, notarized, and whatever. In fact, buying a pack of gum at the store involves a contract, just not one with written-out terms. Emails where you say "I want X" and they say "We can provide X if you Y" are sufficient. If they state that they will not reveal the details of your design, then that can be a legally enforceable term. There is always a risk, though, that one or the other of you was unclear about what you are promising / requiring, which is where the lawyers, or the trust, comes in.

  • Second sentence seems misleading. An email (or otherwise communicated) agreement that satisfies the principles of a contract is as "binding" as one negotiated and reviewed by lawyers. What one gets with the lawyers is not "bindingness" but rather things like clarity, unambiguity, compliance, etc. – feetwet Apr 24 '17 at 17:23

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