Plenty of great mobile apps in recent years have gone on to be huge successes. Just think of WhatsApp or Instagram. Some could say that app development is in its ‘golden age’ right now. The app market is huge, and by next year, there will be almost 2.5 billion smartphone users worldwide. By 2020, the app market will be worth an estimated USD$120 billion.
With the world becoming more globalised and connected by the internet, what this means as an app developer is that you could be selling your app by the millions all over the world. The fact that there have been so many app successes recently means that app developers are moving fast to create the next big app.
However, it is difficult to come up with a great app like Uber or WhatsApp. That is why, when you browse through the Google play store or Apple app store, you will find app clones, monetising off the fruits of someone else’s good idea.
If you currently have a great app idea or you have already created your app, you should know your legal rights. Here are 7 steps to protect your app:
1. Get a non-disclosure agreement
Creating an app usually isn’t a one-man job: you’ll need a lot of brain power to get it off the ground. You’ll probably need to get some help from, for example, a freelance app developer who already has the technical skills to build something great. But how do you make sure that they keep the project confidential and that they don’t steal your idea after they’ve helped you?
It’s better for your app business if you can speak freely about your vision rather than hiding the small details in the fear that your idea will be stolen.
The best way to do this is to sign a non-disclosure agreement before an app developer starts working on your project. An NDA is a legal contract between two people that states what information will be shared between them and what information will not be shared with other people. The great thing about an NDA is that you will then have peace of mind that your idea or trade secrets will be kept confidential.
2. Start building your app
Having an idea or concept is one thing but building it is another. Once you’ve got the code down, no-one should be able to steal it from you. Copyright law can only protect how an idea expresses itself, it doesn’t protect the idea itself. That is why if you have a great app idea, the best thing for you to do is to start coding it and saving it onto your computer.
3. Get your freelancer to sign over any copyright to you
Although building your app is a good way to protect it, sometimes you don’t have the skills to write the code or design it and so you need to bring someone on board. Since your contractors are the ones who are essentially ‘creating’ your app, from a copyright point of view they are first owners to the copyright. You need therefore to get them to sign over any copyright to you once they’ve finished the project for you. That way, if and when your app becomes a huge success, they can’t come after you claiming to own copyright to it.
4. Register a trade mark for your app’s name and logo
If you browse through the app store, you will find plenty of clones. These clones could be infringing trade mark and copyright.
It is potentially straight-forward to make a copyright infringement claim if you have two things: copyright ownership and proof that the defendant had access to copy the app and did copy it. The first is easy to demonstrate in a legal battle if you have all the necessary paperwork. However, it is the second part that is often difficult to prove. How can you prove that they copied you?
That is why the best approach is: create a brand identity and protect it by trade mark registration. Usually the brand name and image become the key link between you and your customers. Registration means you can then stop other traders, innocent or rogue, from using the same or similar brand name or logo for your app. Registration typically last for 10 years and can be renewed in perpetuity.
5. Consider a patent application
The general rule, in the UK and the EU, is that computer software is not patentable. However, there are a few instances where a computer software has been successfully patented. So, in exceptional circumstances, your app or part of it may fulfil the necessary requirements to get a patent. The best way to find out is by getting in touch with a patent attorney to see if your app meets the necessary requirements to get a patent.
6. Pursue developers who infringe your work
If someone is copying your app, take action against them! Pursuing people who outright copy your work will deter others from doing the same.
Although you may have secured the copyright to the original app, if someone were to take your idea and create the same app game and add additional features to it such as different characters or different scenes then your app and their app starts to become differentiated. Both sides can have solid arguments in a legal battle.
In 2013, the Flappy Bird founder decided to take down his app which led to app opportunists creating clones of his app and making money from his idea. At its height, copycat developers uploaded 60 Flappy Bird apps a day, equivalent to one clone every 24 minutes. These copycat developers would argue that they added new elements to the game and therefore that it is a new game altogether.
Google has over 2.6 million apps in its play store but doesn’t check for copyright infringements when apps get uploaded. Your app could be cloned and uploaded to the play store without you realising it. It would only be taken down by Google if someone flags it as fraudulent. This means that they can profit from your original app before it is removed. If, however, you have your copyright and trade mark rights sorted, it will be far easier to have clone apps taken down.
7. Protect yourself from infringing the work of others
Most of us are inspired by the works of others and from what we’ve seen already in the play store. The best way to avoid infringing on the works of others is to be as original as possible. Although Flappy Bird made lots of money in its time, and Uber is currently dominating the taxi cab industry, try not to just create what is popular at the minute. Instead, create something original that fills a real need and avoid replicating the business models of other apps.
Here at the Trademark Hub, we have a wealth of experience in helping the full spectrum of brand owners – from sole traders and SMEs through to multinationals – to search, protect, and enforce their brands and designs both in the UK, in Europe, and around the world. We are always happy to answer your questions, including working with you to register your trade marks and designs in the UK and beyond.
