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How To Protect Your Mobile app

Given the time consumers spend on their smartphones, Business owners are unsurprisingly becoming increasingly alive to the value mobile apps can add to their business. A well-designed mobile app helps you reach a wider audience, improves user experience, increases consumer engagement, and ultimately boosts profitability.

In this article, our intellectual property solicitors discuss the legal issues related to mobile apps, including the benefits of protecting your intellectual property, and how to secure and enforce your rights. They also explain how you can monitor the online use of your intellectual property and keep your information confidential.

What are the benefits of protecting your mobile app’s intellectual property?

Despite the skill involved in developing successful apps, they are, unfortunately, fairly easy to copy. The importance of protecting your business’s mobile apps cannot be overstated. Specific benefits of comprehensive intellectual property protection include the following:

To deter infringers

Prevention is always better than cure, and stopping a would-be infringer in their tracks is better than dealing with copying that has already occurred. When you obtain intellectual property protection for your apps, third parties are less likely to copy because there will be legal consequences.

To enforce your rights

Comprehensive intellectual property protection gives you a suite of rights to enforce against copycats. While different rights may protect the same elements of your app, each right operates differently and is infringed in distinct ways. The more protection you obtain for your app, the more extensive your enforcement options will be.

To entitle you to compensation

The fallout from a third party copying your app can be financially disastrous. The copycat app may divert sales from your business, impact investment opportunities, and damage your relationship with consumers. When you have protected your app, you can mitigate the financial impact by claiming any losses from the infringer.

To generate income

Whilst an app is an intangible business asset, it’s an incredibly valuable one, and can be commercialised in the same way as tangible assets. Successful apps can generate significant income streams, for example through licensing programmes and partnerships. Third parties that you enter into negotiations will require reassurance that your app and, in turn, their investments are protected. If you can show that your app is protected through registered rights and well drafted contracts, you will be able to easily provide reassurance to a third party. Having adequate intellectual property protection in place is generally a prerequisite to securing funding for your app and selling it should a time arise when you decide to concentrate on other opportunities.

What types of intellectual property can be used to protect a mobile app?

Several types of intellectual property work together to protect your app, including the following:

What is copyright?

Copyright is the most noteworthy intellectual property right in the context of mobile apps. Copyright cannot protect an idea, but rather the expression of an idea in tangible form. As its name suggests, copyright only protects your app against copying. If a third party were to develop an app similar to yours independently, you would not have a claim for copyright infringement.

What elements of your app can copyright protect?

Copyright protects a variety of original works, including literary, musical, and artistic. The elements of your app that might qualify for protection include the following:

  • Source code, which can be protected as a literary work.
  • Graphical user interfaces (GUIs), which can be protected as artistic works unless their appearance is dictated by their technical functions.
  • Music.
  • Logo and icons, which can be protected as artistic works.
  • Text, which can be protected as a literary work.

How do you obtain copyright protection?

Unlike many other intellectual rights, such as trade marks, you do not need to register the copyright in your app to gain protection; it arises automatically. When enforcing your rights, you must prove that you own the copyright. It is important to keep records of your development process. It’s a good idea to speak to experienced intellectual property solicitors, like ours, when developing an app to be clear on the steps you must take to put your copyright ownership beyond question. 

Who owns copyright?

The creator of the work owns the copyright in it. If one of your employees creates the app during their employment, you will own the copyright as their employer. If you use external app developers, you must ensure you have watertight agreements with them stating that all intellectual property rights in the app belong to you. Your agreements should be prepared by specialist intellectual property solicitors, who will ensure all relevant rights are effectively transferred to avoid any future disputes.

How much does it cost to protect your app with copyright?

Copyright arises automatically and is free.

How long does copyright last?

How long copyright lasts depends on the nature of the work in question. Typically, it will last for the life of the creator plus 70 years so for example computer programs are protected for 70 years from the end of the year in which the creator died.

Trade mark protection

What is a trade mark?

A trade mark is a ‘badge of origin’, informing consumers where the goods or services originate from. Trade marks cannot protect the technical elements of your app, like the source code, but are crucial in enabling your app to stand out from the millions of similar offerings and preventing third parties from using your branding in their own apps. Examples of well-known app icons protected with trade marks include Google, Apple and Instagram.

Trade marks give their owners a monopoly over the mark in connection with the goods or services it is registered for. A third party does not need to have copied for their actions to amount to trade mark infringement. If they use something similar to your mark in connection with similar goods or services, they may have infringed it.

What elements of your app can a trade mark protect?

To qualify for trade mark protection, the mark must be distinctive and capable of distinguishing your goods or services from those of others. Provided the elements of your app you wish to protect satisfy these and the other legal requirements applicable to trade mark protection, you may be able to protect various aspects of your app, including the following:

  • Its name.
  • Its logo or icon.
  • Its jingle.

How do you obtain trade mark protection?

Trade mark applications are made to the Intellectual Property Office (IPO). The UK trade marks system groups together similar goods and services into 45 categories, known as ‘classes’. Once registered, your trade mark will provide protection in the classes you apply for, so it’s important to choose wisely.

The IPO will review your application to confirm its compliance with trade mark law and practice. If your application succeeds, they will register your trade mark. The scope of your protection will mirror that claimed in your application, so most brand owners seek legal advice when preparing the documentation to ensure the widest possible protection.

Straightforward trade mark applications can be processed within around 3-4 months. if your application receives resistance from the IPO or an earlier rights owner alleging your mark is too similar to theirs, the process can take considerably longer.

How much does it cost to protect your app with a trade mark?

The IPO charges a fee for processing your application, which is currently £170 per mark, for protection in one class. Your solicitor or advisor will charge fees for preparing the application and ensuring it has the best chance of success, and for dealing with any issues that arise.

How long does a trade mark last?

A trade mark lasts longer than any other intellectual property right. Provided you renew your mark every ten years, it will last forever. For a small fee, we can manage your trade mark portfolio and ensure your renewal dates are never missed.

Trade secrets

What is a trade secret?

Trade secrets are any confidential information about your business that gives you a competitive edge. Well-known examples of trade secrets are the Coca-Cola and KFC recipes. Trade secrets are a type of intellectual property right, but unlike other types of intellectual property, they are only ever disclosed to a small number of individuals.

How do you obtain trade secret protection?

Any information can constitute a trade secret provided it meets the following legal criteria:

  • It is secret, meaning that it is known to only a small number of people.
  • You have taken reasonable steps to keep it secret.

There is no need to register a trade secret to obtain legal protection. the law will only deem the information a trade secret if you take proactive steps to protect and keep it confidential. The types of measures necessary will depend on the information and the nature of your organisation, but might include the following;

  • Clearly identifying the information you consider a trade secret.
  • Storing the information safely and ensuring it is protected.
  • Disclosing the information strictly on a need-to-know basis.
  • Informing anyone to whom you disclose the information that it is a trade secret and must be kept confidential.
  • Insisting that recipients of the information sign non-disclosure agreements.

What elements of your app can be protected as trade secrets?

By definition, the elements of your app that might be protectable as a trade secret must be confidential. They may include the following:

  • Source code.
  • Algorithms.
  • Data.
  • Analytics.

How much does it cost to protect your app as a trade secret?

The only costs involved in protecting information as trade secrets are those incurred in setting up the processes required to keep it confidential, such as implementing IT procedures and training employees. Your obligations are ongoing, so you must periodically review your processes to ensure they are up to scratch.

How long do trade secrets last?

Trade secrets last as long as their owner keeps them confidential.  The Coca-Cola recipe has been a trade secret since its inception in the 1800s.

How can I keep my mobile app’s source code confidential?

The fewer people with access to your source code, the less chance of copying. You should limit the number of people that you share the source code with. Disclosing it to some key employees or external consultants is unavoidable, and commercialising it involves allowing others to use it. You must take proactive steps to minimise the risk of those individuals using the source code for purposes other than those for which you provide it.

Our intellectual property solicitors will advise on the measures appropriate in your situation, which might include the following:

  • Including provisions in your employment contracts prohibiting employees from using source code or disclosing it to others both during their employment (other than in connection with their role) or when it ends. The relevant provisions are usually in the form of restrictive covenants. The contracts should also expressly assign to you any intellectual property the employee develops in the course of their employment.
  • Using non-disclosure agreements with anyone to whom you disclose the information, which are contracts that compel the recipient to keep it confidential.
  • Using watertight Consultancy Agreements. Most SMEs require the support of external software consultants to produce and maintain their apps. Your contracts with those third parties must explicitly assign to you any intellectual property created by the consultant in connection with the apps. Since the consultant will require access to confidential software, data, and IT systems, the agreements must contain non-disclosure provisions and restrictive covenants.
  • Ensuring your Software Licence Agreements protect your source code. In addition to technical measures, such as encryption, your license agreements should ensure you retain ownership and control. For example, your licences should clearly define the remit of the user’s rights, permit your policing of their use, and expressly prohibit copying or redistribution, including through practices such as reverse engineering.

Can I obtain intellectual property protection for a mobile app still in development?

Intellectual property rights, such as trade marks, can only be registered once created. You should apply for protection as soon as the mark is ready to ensure no third party applies before you or starts using the branding before the IPO receives your application.

Copyright arises as soon as an idea is expressed in a tangible form, so each stage in the development of your app may be protected as a copyright work in its own right. Since trade secrets rely on you taking reasonable steps to keep the information confidential.

It is crucial to enter into non-disclosure agreements with individuals to whom you allow access to any information relating to the app, even during the development stages. That way, if they subsequently misuse your information, you will have a claim for breach of the non-disclosure agreement.

What are the risks of using open-source code in my mobile app?

Software developers frequently use open-source code when building apps. Doing so may have some undesirable consequences. Examples of some of the risks related to using open-source code include the following:

  • Code developed by someone else may have vulnerabilities which expose your app to security risks from theft and hacking.
  • When you mix open-source code with proprietary code developed specifically for your app, you may create a ‘derivative work’. Some open-source code licences apply both to the original code and anyderivatives of it. You would be obliged to make your source code available to end users on the same terms as the open-source code, namely free of charge and with no restrictions on modification and redistribution.
  • If you use open-source code without due regard to any restrictions, you may infringe the intellectual property rights in it. Few open-source code licences provide reassurances regarding its origins, so using it may infringe third party intellectual property rights.

Many of the risks associated with using open-source code can be mitigated by carefully vetting it and ensuring you understand the basis on which you are permitted to use it. Our intellectual property solicitors are familiar with the nuances of open-source code licensing and will review the relevant licences and advise on their implications.

Can I monitor the app stores for potential infringements on my mobile app’s intellectual property?

Yes, most app stores operate intellectual property policies that allow app owners to alert them to any intellectual property infringements. You should train your staff on the importance of brand protection, and ensure they understand how to identify and report any instances of potential infringement so you can take the appropriate steps.

Many brand owners incorporate app store monitoring into their wider brand protection strategy. The strategy may involve keeping an eye out for any authorised use of your app, its name, logo, or content online, and keeping abreast of any trade mark applications that may impact your registrations. For a small fee, our intellectual property solicitors will monitor all relevant platforms for any potential infringements on your behalf. They couple sophisticated monitoring software with their legal expertise and will alert you to anything problematic. 

How can a mobile app developer enforce their intellectual property rights?

When you have the appropriate intellectual property protection in place for your app, you can address any instances of infringement in the following ways:

  • Using the relevant platform’s intellectual property procedures to get the infringing content taken down.
  • Sending a legal letter, known as a ‘cease and desist letter’ to those behind the infringement. Cease and desist letters are usually sent by the intellectual property owner’s solicitors and detail the nature of the rights being infringed, the infringements, and the steps the recipient must take to avoid legal action. Many copycats cease their activities on receipt of a cease and desist letter from a firm of well-known solicitors like us.
  • Litigation. If the unauthorised use of your app is causing irreparable brand damage or severe financial harm, it may be necessary to issue Court proceedings to stop the infringement. Your claim would include a claim for injunctive relief, forcing the infringer to stop their activities, and damages to compensate you for your losses. Most intellectual property cases settle before trial, and our solicitors are expert negotiators who regularly negotiate favourable out-of-court settlements on behalf of intellectual property owners.

Summary

Mobile apps are big business. Their simplicity makes them accessible to virtually anyone with a smartphone, and users love the convenience of having access to a service at the swipe of a button. Whether your entire business model is based on mobile apps or they simply support your website and bricks-and-mortar offerings, apps play an essential role in your business’s success. It is not enough to merely develop a successful app; to reap the rewards, you must also protect it from copycats. In addition to technical safeguards, effective intellectual property protection is crucial. Our intellectual property solicitors help countless app owners obtain the protection necessary to maintain the integrity of their apps and prevent copying. If your rights are infringed, our intellectual property solicitors will take swift, decisive action to stop the infringements and obtain the relief you are entitled to. 

About our expert

Jill Bainbridge

Jill Bainbridge

Intellectual Property Partner
Jill is the Intellectual Property Partner at Harper James and has specialised in intellectual property protection, dispute resolution, brand and reputation management for over 20 years, having qualified as a solicitor in 1994. Prior to joining Harper James she was a Partner with Blake Morgan who she joined in 1999.


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