How to protect your app?

Nowadays we have apps for taking care of finances, ordering dinner, a taxi, shoes and outfits, managing the agenda and scheduling the next doctor's appointment, finding a date for the evening and teaching us to draw.?The iOS App Store was launched in 2008 with only 500 apps, but last year alone, 400.000 new apps?were added, bringing the total to 4.3 million.?

Developing an app became a logical step for many companies in their efforts to reach consumers. However, while no formal rights protection is required to be able to bring your app to the market, it would be a wise idea to protect it by all means possible, wouldn't it? In what follows I will sketch the most commonly used protection mechanisms available to companies willing to bring their app on the market.

First of all, COPYRIGHT.

While in Europe one does not require a special registration to benefit from copyright protection, there is an important aspect to remember:?

The idea as such is not protected by copyright, only the actual realisation of that idea, its particular embodiment, is.?

In other words, to get copyright protection for your app, you need to start creating it.?

Here comes another important aspect to remember.

Probably, you will have a team working on the app. So the next protection mechanism to think about is having well thought-through and properly drafted CONTRACTS.

Which contracts you will eventually need will depend on your particular situation. However, at the outset, as a minimum, you would need an NDA. An NDA, or a non-disclosure agreement, is a crucial first step before engaging an app developer to work on your project.

The second step would be to have an actual cooperation agreement (app development agreement, or whatever you call it). Aside from defining the expectations, obligations, and rights of both parties, it needs to address two other fundamental issues:

1. From a copyright perspective, the one who creates an app, thus an app developer, is the owner by default (there are nuances if an app developer is your employee). Therefore, you need to agree on the copyright matters. If you want to have copyright for yourself, you need to foresee that your app developer explicitly assigns copyright to you.?
2. Besides, may be certain things about your app you would rather keep secret at all times. To invoke trade secret protection, you are, among others, required by law to take reasonable steps to actually protect the secrecy of the information. In this sense, clear and detailed provisions in the agreement with your app developer defining which information is considered a trade secret and what are your expectations in this respect would definitely be part of such “reasonable steps” (and no, an NDA is not enough).

Next, your app will not go into the world nameless. You have probably already invented a catchy title and a memorable logo to stand out in the sea of apps, right? But have you properly protected these assets already??

You have two possibilities here.?

The first one is TRADEMARK PROTECTION.

If the name of your app and its logo are not overly simplistic or generic, you might register them as trademarks. In fact, there are many considerations with respect to the name and logo of an app. This is, certainly, to be looked at on a case-by-case basis, yet one-letter icons or icons in the commonly used colours would generally lack the required distinctiveness to be registered as a trademark (yes, I know about Netflix, but that’s a well-known brand already).

The second option one has for protecting an icon is REGISTERED DESIGN PROTECTION. The beauty of the registered design is that it can not only protect the icon of your app but also, for instance, the look of your app’s interface. The interface is, of course, protected by default by copyright, however, the registered design is a registered right, which in case of a conflict relieves its owner from the need to prove the existence of the right. In simple terms, it will be much easier to prove that you were the first to create it.

• More on designs in my previous article - Your design needs protection.

Another IP protection mechanism that might be relevant for you and your app is PATENT PROTECTION.

As a general rule in the European Union, computer software is not patentable. However, perhaps something about your app could still be eligible for patent protection. There might have been purely technical problems (e.g. related to battery life or data consumption, or else) solved by novel, technical methods. Should that be the case, there is a good chance for patent protection as well.?

Finally, your app will most likely collect certain data and order it in a systematic or methodical manner in the process of its functioning. In this case, DATABASE RIGHTS could be relevant for you.

• As a side note: where there is data collection and processing, one also cannot forget the GDPR REQUIREMENTS. Failure to comply with the GDPR could cost you a lot... so certainly, do not neglect it.

In other words, the whole IP Universe could - and should - be put to work to protect your new, amazing app. However, in order for this Universe to work for you, you need to take the necessary steps to engage it. Which ones and in which particular order will, of course, depend on a number of factors, so the sooner you discuss this with your trusted legal advisor, the better.?

We, at Starks, are happy to assist you with defining IP strategy for your app protection, drafting all necessary contracts and agreements, as well as in the actual registration/application process for obtaining IP protection for your assets.

Starks: your legal sparring partner.?