With global revenue from app stores forecast to rise 62 per cent to $25bn this year, apps are fast becoming the tool of choice for businesses in reaching out to consumers. The constant shift to new geographies, categories and devices means the app world is continuing to throw up challenges for developers and technology trend-setters.
The Edward Snowden disclosures, which uncovered spy agencies targeting “leaky” apps to take advantage of users’ personal data, focused attention on the dangers faced by app developers. However, while ensuring data security must remain a priority for app developers, you should not lose sight of the measures you can take to protect and profit from your development efforts.
Know your legal obligations around protecting data and comply with them (see, for example, the recent guidance published by the Information Commissioner’s Office). Failure to comply not only puts you at risk of fines and your app being withdrawn but, with the growing concerns among the public about how their personal data is being processed, may lose you customers also. Turn compliance into a selling point.
Make sure it is only you who profits from your ideas. When discussing work in progress with third parties, put a non-disclosure agreement in place beforehand and disclose only as much detail as you have to. If you cannot put an NDA in place, at least make it clear in writing that what you are about to discuss is confidential and mark any materials you show “confidential”.
Chose a distinctive, non-descriptive name for your app. While it may be tempting to use a descriptive name, investing in building up a more unusual brand now, will make your brand more recognisable and valuable in future. Consider registering your app’s name, logo and other distinctive features, such as icons and game characters, as trade marks. Protection is relatively cheap and potentially indefinite. Think of the potential future merchandising opportunities (Angry Bird® toy for anyone…?).
Check that your brand is not similar to any brand that is already in use. Avoiding infringing any pre-existing brand rights at the outset saves the wasted costs and effort of changing your brand later down the line. For example, search for registered European trade marks on the OHIM website and do some Googling. Only earlier this year, it was reported that Apple was asking developers whose apps included the word “Candy” in their names to remove their apps from the App store because of the “Candy Crush®” trade mark (kinda crushing, eh).
Pre-register a suitable domain name to market your app and common variants before you launch. If someone else gets there first, it can be difficult to get back.
Ensure you own the rights in what you develop. If non-employees are involved in the app’s development, obtain an assignment of all their rights relating to the app.
Make sure you are free to exploit your app as you wish. If using open source code, look carefully at the terms of the applicable open source licence, as you may be required to licence your code in turn. Do not include third party materials without first obtaining permission to do so and ensure the licence covers any future use you might wish to make of the materials.
To maximise any copyright or design right protection that may automatically arise in your app and your ability to enforce it, be as original as you can, date all design materials and keep records of the app’s development. Insert digital tags and deliberate errors to assist in tracing and identify any copying.
Where your app solves a technical problem using technical means, that invention may be patentable (think “swipe to unlock” and “one click shopping”). Patents are particularly valuable for inventions that are of general utility or apps which are expected to be sold for many years. Making an application is not as expensive as you might think, and once an invention becomes public you lose your chance to protect it.
Monitor other apps on the market to check that others are not copying your work. The earlier any potential infringement is caught, the easier it is likely to be to deal with it.
Ten steps to a happier life, happy coding everyone!
Claire Bennett is a partner at law firm DLA Piper