As an app creator, you have likely spent many hours and dollars developing an original product. Unfortunately, your success may result in copycats trying to profit from your idea. If you do not defend your work, these copycats can damage your brand and your business. Fortunately, there are likely to be many original elements in your app that you can protect through intellectual property laws. To ensure your hard work does not go to waste, it is important to know what:

  • your intellectual property rights are; and 
  • steps you need to take to protect them. 

This article will explain the different types of intellectual property rights that you may be able to use as an app developer.

Copyright

Copyright is one of the easiest and strongest intellectual property protections. It protects the expression of ideas and grants the creator of a work the exclusive right to control how others may use or exploit the original work. To be eligible for copyright protection, the work must: 

  • be original; and 
  • have taken some skill and effort to create.

For example, there may be copyright in the: 

  • source code;
  • images used; and
  • layout of the app.

In Australia, copyright is automatically granted to the creator for the lifetime of the creator plus 70 years. There is no need to register your copyright. It applies as soon as you create the work.

However, it is important to note that copyright does not protect your actual idea. Therefore, copyright will not stop someone from creating a similar app to yours if they did not actually copy your content.

Patents

A patent is another form of intellectual property protection. Patents give an inventor the exclusive right to commercially exploit their invention for up to 20 years. A patent can afford you a lot of protection from copycats, as it can protect both your idea and the functionality of your app. In order to have a registrable patent your app must be: 

  • new;
  • useful; and 
  • inventive or innovative. 

Patent rights do not attach to new works automatically. Instead, you must apply to register a patent with IP Australia, which can be expensive and time-consuming. For these reasons, before applying for a patent you should consider:

  • the likely lifespan of your app; and
  • whether it is in your commercial interests to spend the funds required to register a patent. 

Trade Secrets

A trade secret involves the protection of secret commercial information that provides one business with an advantage over another. Trade secrets can include: 

  • data;
  • analytics;
  • strategies; or 
  • other information used by you to develop or sell your app. 

You can use trade secrets to protect your ideas and information. However, if you want to rely on a trade secret for protection, you have to keep the information confidential. If a trade secret becomes public, you will lose your rights to it. An advantage of trade secrets is that there is no time limit on the protection they offer. As long as it remains confidential, a trade secret can last forever. To help keep a trade secret protected, you can use contractual arrangements such as: 

If somebody shares your trade secrets, or threatens to do so, you may be able to take them to court. If they have breached your agreement, the court may award you compensation or an injunction (i.e. an order that restrains a person from sharing the information). 

Trade Marks

A trade mark identifies a product or service. When you register a trade mark, you receive exclusive rights to use, license and sell the mark. Once you have finalised your branding, you should apply to register:

  • the name of your app; and 
  • your logo or app icon. 

By registering a trade mark, you can:

  • protect your brand as it becomes more popular; and 
  • prevent competitors from profiting from your brand and reputation. 

Contracts

If you have hired a number of different people to help you develop your app, you should ensure that you have adequate agreements in place to protect your intellectual property. 

Firstly, you should clearly state the ownership of any intellectual property created by you or third parties for your app in a written agreement before commencing work with someone new. If you fail to do so, a third party may legally own the content they have created. This will affect your ability to commercially exploit the content.

Second, you should ensure that a non-disclosure agreement is signed before you share your trade secrets or confidential information with anyone. This might include: 

  • employees; 
  • independent contractors;
  • investors; and 
  • prospective retailers. 

The agreement is a contractual promise that anyone who receives your confidential information will keep it secret. If they share your information, you can enforce your rights in court for breach of contract and potentially receive compensation for any harm suffered as a result. 

Key Takeaways

If you are creating an app, you should ensure that you protect your intellectual property. Some of this protection attaches automatically, but other types of protection require registration or contracts. When deciding how you will protect your work, you should consider your commercial position and your business plans going forward. If you would like to discuss your intellectual property options, contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.
Charlotte Hale

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