Key Legal Issues
- IP and Software
- GUI protection
- Legality of Mobile Apps
Background
An “app”, short for application, is software designed to perform specific tasks or functions on digital devices. Social media and content management platforms primarily utilize internet on mobile applications to facilitate information sharing among users. Unlike traditional computer software, which is designed to run on desktop or laptop computers, mobile apps are developed to provide functionality tailored to the capabilities and limitations of mobile devices.
These platforms include networking sites such as Facebook, Instagram and X, as well as bookmarking platforms like Reddit. They also include diverse communication channels through which news, entertainment, education, data, or promotional messages are communicated. Essentially, such platforms enable blogging, forums, and other interactive features that encourage individuals to engage in discussions about specific blog posts, news articles, or events.
Intellectual Property Protection
The first consideration which must be undertaken is the planning of the applicable goods and services. Given that trademark registration is not applicable to all goods and services, one must necessarily identify the applicable classes from the Nice Convention. Generally, there is a two-way approach on how to classify trademarks for apps through the Nice Convention: the frame of the app can be considered as a product, computer software, API etc. and secondly, an app can also be categorized as a service through its functionality.
Protecting the Name
Perhaps the starting point for any app owner is to obtain protection over the name (the combination of letters and numbers as script) through a word mark. There have been many applicants who have tried to ride this wave, such as the application for the wordmark ‘WhosApp’ and ‘Facemba’
Protecting the Iconic Icon
Alternatively, the app icon is sometimes considered even more important than its name. One can ensure protection over the icon as a figurative image, and it has in fact, helped many app owners ensure that their notable image is protected. However, it is important to understand that not any icon is eligible for registration. The icon needs to include distinct elements which are not considered as a mere representation of the app’s function. In fact, the well-known icon for Apple’s Facetime was rejected as it does not contain any distinct features. Together with the application identifier, essential graphical elements can also be protected in the same way.
GUI Protection
On a more technical side, one of the elements of an app that owners and developers must not overlook when considering intellectual property protection, is the GUI.
A graphical user interface (GUI) is a digital interface in which a user interacts with graphical components such as icons, buttons, and menus to enable a person to communicate with a software. The GUI has replaced the arcane and difficult textual interfaces of earlier computing, with a relatively intuitive system that has made computer operation not only easier to learn but more pleasant and natural for users. The GUI is now the standard computer interface and its components have themselves become unmistakable cultural artifacts.
Due to a lack of legislation, one can find multiple court judgments on the matter. In the ‘BSA’ case, the ECJ delved deeper into the copyright protection of GUI. BSA was a security software association which sought copyright protection in Czech Republic. The national court referred the case to the ECJ. In its ruling, the ECJ claimed that GUI not protected under the Software Directive, but it can be protected as a "work" under the Information Society Directive if it is "author's own intellectual creation" However, one cannot claim copyright on expression of components which have a pure technical function. Distinct animated sequences which function as an identifier icons or interface elements may be eligible for trademark and design protection. Similarly, simple and distance animations (including sound elements) can even be protected as trademarks.
Iconic colors should not be ignored, as once reaching consumer distinctiveness, app owners can go as far as obtaining a color mark for their iconic color or color combination. Just look at T-Mobile (Telecom),who have their distinct magenta color registered for telecom equipment and services.
Software Protection
The ‘hidden’ features of apps, such as its software should also be an area of consideration. Software can be seen as a collection of instructions, data, or computer programs that are used to run machines and carry out particular activities.
The underlying source and object code can be considered as novel literary work and therefore protected by copyright. This may also be used for preparatory design material, such as functional and organic analyses, mock-ups, prototypes, flow charts, internal and external specifications, and functional architecture.
Under the European Patent Convention (EPC),specifically Article 52, "computer programs" are not considered as inventions eligible for European patents. The European Patent Office (EPO)scrutinizes patent applications in this area more rigorously than its American counterpart, it does not necessarily mean that all inventions involving software are legally ineligible for patents.
What this means for you
Whether you are in the process of launching your own app, or you are the owner of apps, it is vital to understand how you can protect your hard work. Intellectual property protection is always changing to keep up with the innovations of technology and the integration of apps in everyday life.
How we can help
Our Intellectual Property team are at the forefront of the intersect between innovation and law. We can provide holistic advice based on IP knowledge, legal technology and the more ‘traditional’ legal frameworks.
