Why didn’t Hasbro and Mattel, the owners of Scrabble, sue Zynga for copyright infringement regarding Words With Friends? Because the intellectual property law is murky, particularly around software and applications. There are nearly 3 million unique mobile apps available on app stores. Google Play and the App Store are full of mobile apps that mimic the concepts of other apps. For every Angry Birds, there’s a series of Angry Zombie Birds, Angry Ninja Birds, or Angry Pigs and Birds.
Before you create and release your mobile app, consider intellectual property from two angles. First, focus on how to protect your own IP. Second, be considerate of the IP of others.
Patents vs. Trademarks vs. Copyright
IP protections fall into one of the three general categories:
- Patents protect inventions by keeping others from co-opting the invention and using it for commercial purposes. Scrabble’s patent would involve the concept and rules for playing the game.
- Trademarks protect names, logos, or other visual identifiers of a commercial product. Trademark would involve Scrabble’s name, its logo, and possibly its board design.
- Copyright protects creative works like written works, songs, sculptures, architectural designs, or photographs. Copyright would protect the music, original artwork, and code behind a Scrabble app.
To become patent-eligible, mobile apps have to do more than take an existing concept and make software out of it. According to Alice v. CLS Bank International, they have to encompass an original, innovative idea, not just the application of an idea in digital form.
For instance, Facebook owns a patent for its news feed because Mark Zuckerberg and Co. did more than just create an application; they created a new way of interacting online. Your mobile app might not contain an idea that’s revolutionary enough for a patent, but a trademark application would protect your app’s unique logo or its innovative name.
You don’t have to register a copyright for your code, but registration gives you a few benefits:
- You can sue. A copyright has to be registered before you can sue someone for infringement.
- It gives notice. A registered copyright makes it hard for someone to say they didn’t know about your copyright.
- You get compensated. If you register a copyright within three months of your app’s release date, you earn the right to seek not just actual damages but also statutory damages for infringement.
IP Lawsuits and Mobile Apps
Rovio, the maker of Angry Birds, once sued a golf club manufacturer called Angry Clubs for trademark violation. The lawsuit didn’t cover the similarity of the name; it covered the club maker’s logo, which had certain visual characteristics reminiscent of the Angry Birds logo. The golf club manufacturer wasn’t a competitor with Rovio, but the suit helped to deter others from riffing off of Rovio’s trademark.
Patents protect inventions from imitation for 20 years, which means that Scrabble’s patents regarding its game and game rules expired long ago. Hasbro and Mattel have, however, gone after word game apps with similar names, like Scrabulous and Scramble. Words With Friends used a completely different name, and its board has a distinctly different visual feel from the Scrabble board. By changing the scoring and adding a social dimension to its word game, Words With Friends escaped trademark violations.
Copyrights related to apps are still being hashed out in the courts. Oracle, for example, has sued Google for copyright infringement regarding the structure of Java APIs in its Android operating system, and the case is now before the U.S. Supreme Court.
Policing the App Stores
Submitting an app to Google Play requires virtually no human intervention. If your app violates another app’s patent or trademark protections, it doesn’t get taken down until someone reports it. Apple has a much stricter admissions policy for the App Store, often declining apps for copyright or trademark violations. Unfortunately, once an app has made it into the App Store, the company has a mixed record of retroactively enforcing IP rules.
If a trademark could be essential to the success of your mobile app, apply before you release your app. Your trademark application might not be approved before your release date, but once it’s approved, it’s retroactive to the filing date. Even with a trademark, the onus is on you and your fans to make sure that other developers don’t infringe on your trademark. Google Play and Apple won’t do the job for you.