How to Protect Your App: A Lawyer’s Simple Breakdown
March 17, 2017, by Steven Buchwald & Drew Johnson
A legal overview of to protect your ideas and app
Many first time startup founders worry about people stealing their idea. They keep their startup a secret until they launch, and won’t talk to anyone about it without an NDA. This should not be your main focus. Take it from Steve Jobs himself, “To me, ideas are worth nothing unless executed. They are just a multiplier. Execution is worth millions.”
Don’t worry about people stealing your idea before you even know if your idea is worth stealing. If after you launch, you find your user base is growing extremely fast and people love it, then it would be reasonable to worry about people copying your app.
There are many types of legal protection, but what types of protection do you need to protect your app? In this article, we’ll give you a concise overview of each type of protection and who should consider getting them.
According to USPTO a copyright, “… is a form of protection provided to the authors of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished.”
All app startups should consider getting a copyright. This will protect your source code, in-app copy, and graphics. It will not protect your ideas. Copyright registrations are usually fast and inexpensive to obtain (think less than $1,000 compared to a patent that can cost 10 times more).
Even though Apple and Google have top tier security, it is possible for someone with a jailbroken phone to extract the source code from your app. They could simply change a couple of lines of your code, and launch it as their own. A copyright gives you a legal recourse to take if someone does attempt a fraudulent act.
A patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office. This will give you the right to exclude others from making, using, or selling the invention in the United States.
Patents are more narrow than copyrights. Its requirements are much more stringent. In short, it must be useful, novel, nonobvious and not a mere abstract idea. Simply put, patents can protect your original inventions from other businesses, and can mitigate the risk of being exposed to false claims of infringement.
The USPTO will look to see if your product uses any “methods or processes for producing a useful, concrete, and tangible result” that were previously patented or used. If so, you will not be granted a patent. Needless to say, whether a patent is right for your app is going to require a thorough analysis of how your app works.
Patents are the most expensive type of protection, and can cost anywhere from $8k-$15k.
There is a thin layer of copyright protection that attaches every time you create anythingー as long as it is somewhat creative. Copyright cases explain that a “modicum of creativity” is required to obtain de facto copyright protection. However, this thin layer of protection is not very useful because in the real world copyright, trademark and patent registrations rule the day. That’s because the intellectual property laws favor IP registrations. In the event of an IP dispute, the business with the IP registration is usually in a stronger position to protect its technology.
Protecting the name of the app is equally important (if not more) than protecting the technology of the app. App names are protected via a trademark registration. A trademark is a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A trademark may be used to prevent others from using marks similar to your app, but it won’t prevent others from creating the same app idea under different creative.
When should you trademark your company name? As soon as you start to see downloads. If you search any popular game in the App Store you will see many spin offs. Popular tetris-style game 1010, has been copied by an overseas programmer that named his game 10101010.
Keep in mind that your trademark should be filed after your business entity has been formed. Other than that, filing a trademark early-on is advantageous and will cost you approximately $150. Read more on trademark protection on the Startup Law Blog.
Before settling on any name, it’s important to check if it’s even possible to trademark your app. You can see if the name is available on the US Patent and Trademark website. You should then consult a trademark attorney on the next steps.
After settling on your name, make sure you reserve the name with the App Store and create social media accounts and register a website domain name.
To protect your app name on the App Store, go to iTunes Connect and submit your app name reservation. The application process and reservations are free and as of 2015, there is no limit as to how long you can hold your name for as long as you are not in violation of Apple’s Guidelines.
“You will not, directly or indirectly, commit … (e.g., submitting fraudulent reviews of Your own Application or any third party application, choosing a name for Your Application that is substantially similar to the name of a third party application in order to create consumer confusion, or squatting on application names to prevent legitimate third party use.”
You can use Namechk to check if there are domains and social media usernames available for your company. This can be a great resource to use when choosing a name so you don’t invest too much time in searching before realizing the names you wanted aren’t available.
Try to match your domain name as closely as possible to your business and/or app name. It’s becoming increasingly difficult to do this millions of domain names are already taken. You may have to get creative like companies such as www.joinhouse.party, www.visual.ly, and www.snapl.ink. You can purchase your domain by going to a provider like Namecheap and paying an annual fee of $10-$40.
Always ask the agency you’re working with for an NDA. Every established mobile app development agency will have these documents on hand and will gladly sign upon request. Mutual NDA’s keep all information you share private and will confirm that everything that is rightfully yours will remain yours.
Signing an NDA will give you protection to some degree, but it won’t 100% guarantee your app is safe. The best way to protect your app during development is to work with a reputable company. Conduct thorough research by using reliable review sites like Clutch.co to make sure the agency you work with is trustworthy and guarantees quality work.