Protection of IP rights for Mobile Apps

Mobile Applications have made many businesses go “on-the-fly”. Yet, the investments involved are minimal, sometimes going as low as few thousands. Is it worth protecting your mobile application against replication; when the cost of development is low and complete protection takes much longer than development itself? Here, we are inking few Intellectual Property Tools through which you can protect your mobile application from being duplicated. We will also highlight why protecting your mobile application through these tools is worth-while:

Patents: It has been a long due question, as to whether mobile applications are patentable. Mobile applications are nothing but software running on a mobile hardware and interacting with various servers. Each country has different criteria for examining the patent applications based on computer implemented inventions or software based inventions. There is no straight jacket answer for whether your mobile application is patentable in a particular country or not. For that, you need to get in touch with a patent expert.

However, in general, the mobile application and technological ecosystem of the mobile application is a subject matter for patentability. For example, when a virtual keyboard was first introduced in mobile phones, surely it was a patentable subject-matter. There may be various front end elements of mobile applications which can be novel, inventive and may be out of the excluded subject-matter of patenting. Also, the way the mobile application is communicating with a server or another mobile device may again be a subject-matter of patentability.

Trademarks: For marketing or other usage purposes, a mobile application can have a name or an artistic device (logo) or a combination of the two; through which the mobile application is identified by its consumer. It is quite important to mention that a Trademark gains strength through its usage. Also, with more usage it becomes more vulnerable to duplication.

The mobile application is first promoted online and then downloaded by the user on his/her mobile and then continuously used by the user through their mobile. During promotions, the “name” of the mobile application is used more than the “logo”; and during the download process, the mobile application is mentioned with both, “name” and “logo”. Once the mobile application is downloaded on to a user’s device it appears more as an icon, which is nothing more than a “logo”. Hence, the “name” and “logo” becomes equally important to be protected by a trademark. Therefore, it is suggested that one must seek protection for the “name” and “logo” individually. However, it is advisable to talk to an expert to identify your usage and marketing pattern in order to determine a specific trademark protection strategy for you.

A trademark is an increasingly essential strategic marketing and intellectual property asset to any business. Here are a few tips to keep in mind when choosing the right “name” and “logo” for your mobile application.

v     Ensure that your name and logo closely represent the functionality of the application. The first impression of the application is through your “name” and “logo” and it must catch the user’s attention. Here are few examples where the name and logo of the application comply with the application’s functionality.

v     Even if the trade name doesn’t correspond to the functionality of the application, ensure that it is short and unique. Here are some examples where the name and logo are not functionally linked to the product.

Copyright: Another important form of protection for mobile applications is copyright. Copyright allows protection for creators of original work of authorship for literary and artistic work. Computer codes and presentation of various mobile screens during a workflow of a mobile application are considered as literary work and artistic work respectively. Other aspects of mobile application which can be considered artistic are movable images, music, sound, video recordings, etc. of the mobile application interface.

Generally, a copyright is automatically effective after creation and there is no necessity to file for copyright protection. But at the same time, protecting various copyrightable aspects of your mobile application would be an essential step when quick preliminary injunction is required. To get a preliminary injunction from a court of law, it is required to establish a prima facie case of infringement. And, to establish a prima facie case, a copyright registration works as an effective tool for the copyright owner, of holding a copyright. For various mobile applications, there is a chance that the owner of the application may lose a huge sum of money and business, if a preliminary injunction is not received at the earliest.

Whether to file a single copyright for various subject matters like the user interface, images, layout of the application, the screenshots of the application, or just one copyright for all, is a subjective decision. These decisions may vary from case to case, and strategy to strategy and would therefore require an expert’s opinion.

Mobile applications are part of a fast moving technology, and these applications can be developed at a very quick pace. Mobile technology may be constantly changing but protecting these applications will be very beneficial for the business in the long run. In some cases, the mobile application is just a part of the business, whereas in other cases the business itself is the mobile application. For example, Ola, a taxi/cab service provider has disturped the public transport industry through its mobile application. Another example is Whatsapp, an instant messaging application where the whole business itself is the mobile application. Thus, one should devise a suitable Intellectual Property Protection strategy, to enjoy maximum benefits from the mobile application without worrying about competitors who may duplicate the mobile application technology.

About the authors:

Gaurav Singhal is the Director and Principal IP Attorney at Patracode Services Pvt Ltd. He is a B. Tech in Computer Science, LLB from IIT-Kharagpur and Masters in Business Laws from National Laws School of India University, Bangalore. Gaurav has been working in the IPR field since many years and has been the Strategic IP Counsel at Siemens India, headed Intellectual Property Department of a Singaporean firm, and is also a practicing Patent Agent at the Indian Patent Office. This post has been co-authored with Ananya Dhuddu who works as an Intellectual Property Analyst at Patracode.