Smartphones are in the hands of tens of millions of people worldwide. The exponential growth of the smartphone industry over the past decade has created an enormous market for "apps"—applications that run on devices like iPhones and Androids. Creators of apps stand to make substantial profit if their products become popular.
But like anything on the Internet, apps are susceptible to copying and theft. Needless to say, you are likely to lose market share and profit if you lack exclusive control over your product. If you design an app, what steps can you take to help prevent the theft of your intellectual property?
The easiest way to solve a problem is before it even begins. As you develop your app, be careful with how you share the idea and the details. If you share the idea broadly—posting about it on your social media, telling all your friends and family, or blogging about it—you might find that someone else will be able to develop the idea into a fully functional app before you do, and then beat you to market.
Try to limit your disclosures about your product development until launch. If you need to share the idea for the code with anyone else, consider having them sign a nondisclosure agreement (NDA). An NDA is essentially a contract whereby the third party promises not to share any information that he or she learns about your app.
For the NDA to be enforceable, it must be drafted carefully, however, and be specific about the precise information that it seeks to protect. Like any contract, it must also be supported by "consideration," some sort of exchange of value between you and the third party. If the person is an independent contractor whom you are hiring to work on the product, then the consideration is ordinarily the payment for that service. The purpose of an NDA is to allow you to file a lawsuit against that someone who breach the promise to maintain confidentiality.
Overall, the lesson is simple: do not share information about your app with anyone unless you absolutely must, prior to your public launch of the app.
Trademark law allows businesses to obtain the exclusive right to use registered names, images, designs, or other symbols that identify the product in the marketplace. You will need to register separate trademarks on the name of your app and on its logo (the logo that will appear on users' smartphone screens).
You can register your trademark via the U.S. Patent and Trademark Office (USPTO), the federal agency charged with management of federal trademarks. You can apply for trademark registration online through the USPTO's website. Depending on the nature of the trademark(s), you can expect to pay between $225 and $400 in fees per mark (2019 figures).
Trademarks are particularly important in the Web space. You will need an app name that is easily recognizable, which customers will begin to associate with your product. You also need to make it fairly easy to search for on various online app stores.
With all of these requirements, you will want to ensure that no one else can easily take your product name. A federal trademark registration will help you to accomplish just that.
Creators of original work can protect that work through copyright. Specifically, 17 U.S. Code § 106 grants creators certain exclusive rights to their work, including the right to reproduce, distribute, and modify it. Many people incorrectly assume that copyright protection covers only artistic works, such as paintings, poetry, and sculpture. But actually, copyright can also protect computer code, such as the code behind your app.
To obtain a copyright over your app code, you can register it with the U.S. Copyright Office, the federal agency charged with oversight over copyrights.
Registration has a number of benefits. First, the law requires that you have a registration on your work before suing someone for infringement. Put differently, you cannot walk into court and file a lawsuit seeking to protect a nonregistered creative work.
Second, copyright registration allows you to put the well-known "©" symbol on your work. This copyright symbol will immediately scare away many potential infringers, who see that you are taking your intellectual property rights seriously. (They may think twice about infringing on your app if they believe that they might be sued.)
Registration is not overly complicated, and you do not necessarily need an attorney. You can submit your app through the Electronic Copyright Office (eCO), which will ask you a series of questions about the work you are trying to register. Note that it will also charge you fees for the registration, typically between $35 and $50 (2019 figures).
You might wonder whether it's worthwhile to register the code for your app if that code might later change. It's true that the code of any app is rarely stagnant. Rather, it will shift over time as you add features and fix bugs.
But the mere fact of having copyright protection on your first major iteration of the app may be enough to scare away potential infringers. It will also allow you to sue for infringement over the primary features of the app, even if bits and pieces change. (You can always register another version of the code if you do a second major release.)
For more information about copyrighting your app, check out the Copyright Office's helpful guide to copyrighting software.
