Serhad Zenginpedük

24 Kas 202026 dakikada okunur

IP PROTECTION OF MOBILE APPLICATIONS

REPUBLIC OF TURKEY ANKARA UNIVERSITY SOCIAL SCIENCES INSTITUTE DEPARTMENT OF INTELLECTUAL PROPERTY RIGHTS TECHNOLOGY POLICY AND INNOVATION MANAGEMENT

IP PROTECTION OF MOBILE APPLICATIONS Seminar Paper Arda Zenginpedük Supervisor Dr. Öğr. Üyesi Selin ÖZDEN MERHACI

Ankara 21.01.2019

THE TABLE OF CONTENTS ABBREVIATIONS ……………………………………………………………………... iii § INTRODUCTION …………………………………………………………………….. 1 § First Chapter PATENT PROTECTION I. Patentability Conditions …… ……………………………………………….3 A. Novelty …………………………………………………………………………3 B. Inventive Step…………………………………………………………………..4 C. Utility (Industrial Applicability)………………………………………………...4 II. Patent Infringement in Mobile Applications…………………...…………….5 § Second Chapter COPYRIGHT PROTECTION I. Scope of Copyright Protection…………………………………………………7 II. Protecting Mobile Applications through Copyright……………………….…9 § Third Chapter TRADEMARK PROTECTION I. Scope Of Trademark Protection………………………………………………11 II. Protecting Mobile Applications through Trademark………………………..13 § CONCLUSION ……………………………………………………………………. …...15 BIBLIOGRAPHY …………………………………………………………………........... 18 ABBREVIATONS Art. : Article EPO : European Patent Office Etc. : Et cetera EU : European Union IP : Intellectual and Industrial Property IPR : Intellectual and Industrial Property Right TRIPS : Trade-Related Aspects of Intellectual Property Rights Agreement WIPO : World Intellectual Property Organization USPTO : United States Patent and Trademark Office IP PROTECTION OF MOBILE APPLICATIONS

§ INTRODUCTION

As technology involves in our lives more and more every day, people are getting more addictive to their smart phones. Especially in the last decade of 21st century, smart phones become indispensable for daily life. The most important reason for that is smart phones are able to satisfy almost every function that computers and other machines provide. To satisfy these functions, there are thousands of applications created by developers to make the smart phones in people’s pocket to be more effective and make their life easier. By downloading different mobile applications to your device, you also make your device more functional in the way that you like. If one wants to entertain with his device, there are thousands of game applications in store or one can choose applications dealing with learning and education and access thousands of books from his device rather than buying lots of books one by one.

Things that make life easier for people creates a market. This is proved upon many years starting from the industrial revolution. When mass production becomes widespread and different goods and services started to be produced in large numbers, revenues and value of each market also started to grow. Today, mobile application market is one of the markets that has the highest revenue because users contribute to this market only by tapping on the screen of their phones. Researches show that in 2015, mobile application revenue around the world is amounted to $69.7 billion and in 2016, this number is increased to $88.3 billion in 2016. By 2020, it is expected global revenues of mobile applications will be around $188.9 billion according to this research.[1] As the market grows for new goods and services that developing technology provides, it becomes a necessity for every company in this market to strictly defend their rights on their products. Being able to connect most of the people all around the world through online technologies makes it easier to commercialize products, on the other hand it also makes it harder to keep their market values on its creator and prevent others from using creator’s technology, idea or expression on that product.

In this work, the most effective legal ways to protect the IP rights on a mobile application is going to be examined. There are different types of IPRs arising from a single mobile app which are trademarks, patents and copyrights. While trademark rights are important mostly for the logo and name of the application, copyright deals with the codes and layout/screen shots. If the technology behind that application is also patentable according to TRIPS rules, then patent rights also must be protected.[2] These protections help companies that are investing on mobile applications to commercialize their products without being threatened by other companies or indie developers in the market with using their technology, idea or the way that they express their ideas on their product.

As it seems, as the people becomes more connected to each other through online systems, protecting an idea is getting more important to gain profit out of a product. Legal status of mobile applications and different options to protect the IPRs on them is indisputably a must-known process to be strong in the market.

§ FIRST CHAPTER

PATENT PROTECTION

Mobile applications are patentable if they meet the conditions of patentability. On the other hand, it is not the software or the code of the application that is patentable but it is the method or process that the application includes. The application needs to be novel, include an inventive step and have utility to be patented as a result of conditions of patentability. Most of the applications do not meet all of these conditions today because although an application is very unique and derives from a very creative idea, it is not important for patentability. For example, the first introduction of virtual keyboard in mobile phones was novel but the most important point is it was a new technology and definitely considered as an inventive step which eventually led creation of lots of different ideas and applications arising from this technology.[3] That technology was also industrially applicable or has utility because it is used in industry of mobile technologies mostly after the invention and also new technologies like word typing touch screen technology.[4]

I. Patentability Conditions

As it is explained above, to make a good commercialization for your product, strong legal protection is a necessity. To satisfy this necessity, company or developer that created an application needs to be careful about which way of legal protection he should choose. Although protecting a product with patent is possible, that does not mean most of them are patentable. To save money and time, the one that is going to make a patent application must be careful about if his product meets these conditions:

· Novelty

· Including an inventive step

· Utility (Industrial Applicability)

The product is called “invention” in field of patent law. When an inventor makes a new invention which is taking the current state of technology one step forward, he has to explain his invention and why it is suitable for a patent production in his claims existing in the patent application. Claims are the most important part in a patent application because during the determination of conditions that are lined up above, claims are also being compared with the claims of existing patents. In this comparison, patent examiners are looking for a new step in the field of technology which is beneficial for making life easier. Taking this in consideration, the “claims” part in a patent application is crucial to determine the existence of these conditions in that invention.

Below, it will be examined that what these conditions mean in patent law and what are the main points to meet these conditions in a patent application seperateley.

A. Novelty

Novelty is about comparison with the prior art. In another words, an invention must not be included in prior art. With that definition, it is understood that originality or being unique is not the main point when considering novelty. The main point is the prior art which is accessible for the public before the patent application through acts like press conferences, marketing and publication.

“The first step in deciding whether an invention is new is to define the prior art, the relevant part of that art, and the content of that relevant art. The next is to compare the invention with the prior art thus defined, and see whether the invention differs from it. If it does, the invention is novel.”[5]

As it seems, if a mobile application is not identical with another mobile application that is marketed or published in any way to the public, it does not meet the criteria of novelty so it makes it non patentable. Before making a patent application, the one must make a patent search to find out if there is any other prior arts about that application. As long as patent protection has a local effect, the search should be made including the regions that the application will be marketed. Today, most of the applications are sold through Apple Inc.’s App Store or Google’s Play Store globally so for mobile applications most of the time, patent search must be made globally.

B. Inventive Step

Product that is the subject matter of the patent application must involve an inventive step. When inventive step is considered, the term “skilled person” is used in terminology and this skilled person determines if the invention is obvious for experts in that industry according to the state of art. Being novel is not enough for an invention to be patented because although an invention is not identical with the prior art, general state of the art may make that invention too obvious for experts working in that field which leads to the point that the invention does not involve an inventive character when compared to state of art.

EPO’s definition of inventive step explains the main points about the situation:

“ Inventive step is usually evaluated on the basis of the "problem-solution" approach, in other words whether the solution presented to the problem in the patent application is obvious or not to the person skilled in the art.”

To consider a mobile applications as a patentable invention, again it should be an application that solves a problem by a way that is not obvious when general state of art in the field of mobile software technologies.

C. Utility (Industrial Applicability)

Last condition of patentability differs in different regions. In most countries including EPO members, industrial applicability is a requirement for patentability while in some countries like United States of America, utility is the condition that is looking for patentability rather than industrial applicability.

Industrial applicability means that the invention should be capable of using in an industry. “… an invention shall be considered to be susceptible (or capable) of industrial application “if it can be made or used in any kind of industry, including agriculture.” The general understanding is that the term “industry” shall be interpreted in the broadest possible sense.”[6]

Utility is the requirement that is mostly known from USPTO application. USPTO defines utility as a new and useful process, machine, manufacture or composition of matter or a new and useful improvement thereof.[7]

As it is described by USPTO, to meet the utility condition, invention must be useful for the industry and different from industrial applicability, it should also be new but ina different way when compared to novelty. This time in utility, “new” is described less specific and used the term “ordinary skilled person”.

“USPTO, provide that an invention has a well-established utility if: (i) a person of ordinary skill in the art would immediately appreciate why the invention is useful, and (ii) the utility is specific, substantial and credible.”[8]

According to these descriptions, patentability of a mobile application differs from region to region as in general countries are looking for industrial applicability but in some regions like USA, utility must be met. When making an application for a mobile application, the one should consider if that product is useful in industry. When it is considered like this, game applications can be thought as non-patentable for most of the time whereas applications provide services for education or health are more likely to be considered as patentable.

II. Patent Infringement in Mobile Applications

Mobile application patents have a big value in the market beyond dispute when the value of the whole industry is considered. A patent owner in this industry has the chance to sue plenty of companies according to his patent rights because thousands of new applications are published continuously. Patent companies which are called “Patent Trolls” in mobile technologies industry has a bad reputation because of the large number of lawsuits they filed against application developers and companies.

Lodsys, LLC is one of the most famous “Patent Trolls” in industry which holds four patents regarding this industry. With these patents, which are generally used for in-app purchases, online shopping or polling systems, in 2011 Lodsys filed several law suits against seven small software development firms for infringing their patent rights. As most of the software developers need to use these patents, Lodsys have earn profit from big firms in the market that can pay licensing fees easily. On the other hand, they have become a real threat among small companies which cannot afford licensing fees and this had become a serious problem in the industry that firms like Apple Inc. or Google which provides online stores to developers to sell their applications started to feel uncomfortable that developers will not create new applications because of this huge threat.[9] In the end, one of the opposing parties of Lodsys, Kaspersky Lab, has announced that Lodsys has withdrawn its lawsuit and following this decision, the biggest “Patent Troll” Lodsys has ended its facilities in 2015.[10]

Although the problem seems like it is solved for now, it has showed the importance of the patent rights on inventions about mobile application industry which can become a huge threat among even the biggest and strongest companies in the market. Although Lodys is only a patent holder and not a manufacturer of mobile applications, they have gained profits out of their patent rights without any commercialization or production.

Another important example about importance of a patent right for a mobile application is the case between famous dating applications Tinder and Bumble. Bumble is established by a former partner of Tinder and both applications are used for online dating.[11] Tinder is holding nine patents about their system which includes “Matching Process System and Method” of the application.[12] As Bumble Trading Inc. is also using a similar interface, a case between Tinder and Bumble Trading Inc. has started among the issue of patent infringement. After the filing of a counter-case by Bumble Trading Inc. (which is not about a patent right that they hold but the idea that only women users have the right to start a conversation through application) patent battle between two companies has grown and came to the point that partner company of Tinder Inc., Match Group, has made an offer to Bumble to buy the company for $450 million first and then, their last offer was worth $1 billion.[13] However Bumble Trading Inc. did not accepted that offer and they chose to move on with their court case.

As it is understood again with this famous case, in the industry of mobile applications, a patent infringement can become a problem worth $1 billion. In that case, commercial value of the company can only be protected not with good commercialization or marketing but a strong patent protection which Tinder has and that is why they can threaten Bumble and have the opportunity to make an offer worth $1 billion because for today, Bumble Trading Inc. has no patents on their own and eventually in my opinion, it seems that Bumble Trading Inc. will be sold with a good value that they achieved by good commercialization but the company that will stand still for a longer time will be Tinder Inc. because of their patent rights.

§ SECOND CHAPTER

COPYRIGHT PROTECTION

I. Scope of Copyright Protection

Copyright can be defined as the rights that creators have over their literary and artistic works. The word “work” here should be interpreted broadly that it covers books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.[14] Copyright protection has a difference when it is compared to patents or trademarks that these rights exists when the work is completed and does not need any registrations. Making a registration also brings some advantages especially in courts about copyright infringements but essentially, a copyright holder obtains his right when his work is completed. When a copyright has obtained, some of the rights that are granted to its holder can be counted as:

· Legal protection of the work,

· Determining how a literal or artistic work may be marketed,

· Producing copies of the work or reproducing the work,

· Public display of the work,

· Transmitting the work through media

· Creating derivative works out of the work

Copyright protection provides almost a full control on the work for its creator and does not look for a registration to protect it. Second advantage of the copyright is its time limit for protection. Although it can differ from country to country, according to Art. 7 of Berne Convention, a copyright should be protected until at least 50 years from the death of its creator.

Art. 7 of Berne Convention: “The term of protection granted by this Convention shall be the life of the author and fifty years after his death.”

Member states of Berne Convention may provide a longer protection time according to the same Article of Berne Convention. When it is considered this way, copyright protections provides quick, long and broad protection for its holder. On the other hand, rights that are granted by copyright should be examined in two subtitles which are economic rights and moral rights. At this point, again copyright protection differs from patents and trademarks. Economic rights are basically rights that allows right holder to gain revenue out of the work like broadcasting, reproduction, public performing or translation. Although a right holder purchases these rights from the creator, creator still holds his moral rights which are non-assignable. Art. 6bis of Berne Convention regulates moral rights on copyrights: “Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”

Creating an artistic or literary work that is suitable for copyright protection provides these stated rights in all member states of Berne Convention at the time that work is created but for non-member states, copyright protection has a local effect so creator must be careful about protecting his work in global basis.

II. Protecting Mobile Applications through Copyright

Copyright, as it seems, is another way to protect a mobile application as well because mobile applications are, on several counts, both a literary and an artistic work. First of all, in every application, there is a written source code behind it. These source codes are written and can be considered as a book because it can be printable on sheet but it has to be understood that source code is a book that only a computer can understand. In connection with that, it can consequently be accepted that source codes are literary works created by the developer of a mobile application and are suitable for a copyright protection. Sometimes, open source codes are released by firms to make their advertisements and support developers or by companies that are providing the stores for these applications (Apple Inc., Google) to enable application developers to use when they are creating an application. These open source codes are available for creators in the market but of course they have a license agreement and according to these agreements some can use the codes freely or some bring obligations like showing the company name in the application created by using that code. From this point of view, we can say that sometimes holding a copyright is not always a right that is strictly protected by the holder and not shared with anyone but it can be made the subject matter of a license agreement and used as a way to gain profit or be shared with public to stimulate dynamism of the market. Secondly, in a mobile application, rather than source code there are shapes, colors, general pictorial and graphic works incorporated into the application.[15] These pictorial and graphic works are the artistic works in the application which are also forms the subject matter of copyright and available for a registration. During a case between Whelan Associates and Jaslow Dental Laboratory, Third Circuit of United States Court of Appeal held that “copyright protection of computer programs may extend beyond the programs’ literal code to their structure, sequence and organization” in 1986.[16] This case was one of the most important cases for the development of understanding of copyright on computer softwares which also leads us today about mobile applications since those applications are also software applications running on a mobile device.[17]

Although one can protect his copyrights on a mobile application by copyright, it is important that copyright only protects the code and the expression of the idea but not the idea itself. This means same idea can be expressed n endless forms by other developers. Main point in copyright protection is the expression of the creator. That is why copyright law is only interested in written or tangible works of the creator or developer in this case. One of the famous case about importance of copyright in mobile applications is about famous mobile game Flappy Bird. In point of fact, it is not a court case but more like an occasion that shows how big is the mobile application and how easy it is to copy an idea or a popular game. In 2014, a very simple game for smart phones called Flappy Bird is released and it has became more than popular but addictive among players that creator of the game Dong Nguyen revealed that he is earning on average $50.000 a day from in-app ads.[18] Although he is not one of the biggest competitors in the market, he had become popular with his game but the actual point is that one day he announced that he is going to remove his game from both App Store of Apple Inc. and Play Store of Google. After his removal, there were sixty Flappy Bird clones a day uploaded to Apple Inc.’s App Store which means a clone is published in every 24 minutes.[19]

This case is one of the best ways to clarify how easy to copy an application and how much earnings can a single application can provide to its creator. That is why protecting the application legally can become more important than achieving success in the industry. In consideration of these situations, mobile applications have different parts that can be protected through copyright protection individually like its source code, graphics, sounds, structure etc. That is why most of the time when ownership of the copyright on a mobile application is considered, it is possible that more than one owners hold a different copyright on that application as the creator. However in today’s world, copyright holders are generally the companies rather than individuals that they enjoy the economic rights arising out of a mobile application.

Lastly, although it has stated above that copyright exists at the moment that a literal or artistic work is created, to have the right to file a court case against infringements, one has to grant a registration for his application to prove that he is the first to create the work.[20] In addition to that, it is also important to have preliminary injunction from a court of law to establish a prima facie case of infringement.[21] For that reason, a right in that importance in the field of technology needs to be protected and used in the market wisely by holding them for yourself to create new applications or gaining profit out of them by licensing the codes of your own with strong license agreements.

§ THIRD CHAPTER

TRADEMARK PROTECTION

I. Scope of Trademark Protection

WIPO defines trademark as a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises.[22] Different from copyright, trademark protection normally can be obtained through registration. Exceptionally, according to Art. 6bis of Paris Convention, if a trademark becomes well-known in a territory, the company can also enjoy trademark rights without any registration. These rights’ time limit for protection differs in every territory but it is generally lasts for 10 years but it is renewable indefinitely.[23] Trademark rights have territorial effects which means that one who wants to provide a protection for his company has to register its trademark to the countries that he wants protection in. It can be done by registering every single country one by one or through WIPO’s Madrid System. The Madrid System is an effective system for registering and managing trademarks worldwide. Filing a single application and paying one set of fees to apply for protection in up to 119 countries is possible with this System.[24] As it is stated, granting a trademark protection generally needs a registration and trademarks can be defined as the most valuable assets of companies. According to a search that has made by famous business magazine Forbes, in 2018, first five companies that are highest valued in the market are effective in the field of technology and developing mobile applications. According to that research, Apple Inc.’s brand value is calculated worth $182.8B and Google Inc.’s brand value is following it with the value of $132.1B which is followed by Microsoft with the brand value of $104.9B. One of the biggest social media companies, Facebook Inc.’s brand is worth $94.8B and online buying server Amazon.com Inc. is worth $70.9B.[25]

It can easily be understood that like patents and copyrights, trademark rights also need to be taken seriously by companies to protect their market values and prevent any infringements by unauthorized use. Signs that are suitable for a trademark registration is defined in the Art. 15 of TRIPS Agreement: “Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark. Such signs, in particular words including personal names, letters, numerals, figurative elements and combinations of colours as well as any combination of such signs, shall be eligible for registration as trademarks.”. Starting from this, it can be stated that the most important thing for a sign to be considered as eligible for registration is the capability of distinguishing. Sign that creates the ability of distinguishing is also called distinctive character of a trademark. If a trademark is suggestive, descriptive or the wording of the trademark is a generic term, then it should be considered as non-registrable. In other words, nobody can hold the exclusive right to use a suggestive, descriptive or a generic term related to the field of the product. Again these characters can be a name, sign, logo, slogan or for companies that develop mobile applications, applications’ icons appear on the screen of device or the name of application.

At this point, it has to be mentioned that after registration, a trademark gains its strength through its usage. On the other hand, having an excessive fame and increasing the usage of the trademark among people also makes the trademark more vulnerable against duplication.[26] If a trademark is registered (or if it is accepted as a well known mark), right holder of that trademark has the opportunity to file cases against those infringers who try to make profit through unfair usage of the trademark and prevent them from using it anymore. In mobile application market, generally an application is published among the world through Google Play Store or Apple App Store. In that case, registration of a trademark becomes more important because millions of users become able to see your trademark name, icon, logo or slogan suddenly with a publication and it becomes harder after that point to provide a worldwide protection on it. This registration also enable other companies or developers in the market to be informed about your trademark and it deters those companies or developers from any infringements. Related to this, when a trademark registration is going to be made about a mobile application, one should make a good search about current trademarks both through patent offices and online stores to avoid any infringement on other’s trademarks.

II. Protecting Mobile Applications through Trademark

As it is stated above, trademark rights in mobile application helps the owner to protect its applications’ names, logos, icons and the features of application interfaces generally. For example, famous social media application Twitter has filed its trademark registration through USPTO on 24.09.2009, the writing of the word “twitter” in its stylized form which is surrounded by a bubble of space, and it is registered on 24.07.2012.[27] They also registered their name, not by any stylization but just the name of the company on 12.05.2009 again through USPTO.[28] Starting from here, it shows that a company can make different trademark registrations for different distinguishing signs of its application.

Registering different signs of an application also helps the owner in every phase of marketing. To explain, During the promotion phase, the name of the mobile application is used more than the logo; and during the download process, the mobile application is mentioned with both name and logo. Once the mobile application is downloaded on to a user’s device it appears more as an icon, which is nothing more than a logo.[29] So, when a mobile application is published through App Store or Play Store, user firstly sees the name of the application as a distinguishing sign from other applications in the store which forms the first thought in user’s mind and after the downloading, user only sees the logo of the application to distinguish it from other applications in his device. Through usage, if the application is downloaded by enough users and used permanently, it becomes easy for the company to do the marketing because they have built a name and logo which millions of people are able to see on their phone’s screen everyday. This type of a marketing opportunity is not possible in other fields of business.

As there are around 6 million applications available in different application stores,[30] that means there are millions of possibilities of infringing anyone’s trademark which can be very costly. One of the famous cases about trademark infringement was held between Donald Trump and an application developer and musician Tom Scharfeld. In 2011, Scharfeld released his mobile application called “iTrump”, under the name of his company, Spoonjack LLC, which combines a virtual version of a trumpet, playable with one's fingers, with a game that teaches users how to play. However, Trump’s attorneys had sent a notice to Scharfeld demanding: "Your company's use of that mark is likely to cause confusion and lead consumers to falsely believe that Spoonjack's software emanates from or are affiliated with that of Mr. Trump, who also has iPhone applications sold under his name (…) In addition, your company's use of the iTRUMP mark causes dilution of the famous quality of the TRUMP mark and tarnishes the goodwill and reputation that Mr. Trump has built up over many years." which means that the wording “iTrump” does not meet the criteria of distinguishing one’s goods or services from others’ goods and services. Scharfeld defended himself without any attorneys and stated that his trademark is not used in the same business and it is obvious that the wording “iTrump” is about trumpets. After six years battle, Scharfeld won the case against Trump but he didn’t stop. In the years that followed, Scharfeld methodically set about canceling a trio of related trademarks owned by Trump and blocking an attempt by Trump to register a fourth, which Scharfeld argued was fraudulent.[31]

This case is one of the best examples to show the ways that a trademark can be attacked and interpretation of the distinctive character of a trademark. A trademark has a value as it is mentioned above and that is why attorneys of Donald Trump took an action immediately to protect the value of their brand by preventing irrelevant brands to use their names. However, only the wording is not enough for an infringement because it has to cause confusion on consumer’s mind. Scharfeld used an image of a trumpet on the icon of his application and prevent the dilution.

§ CONCLUSION

Mobile applications are one of the fastest growing markets and it seems like it will grow every year according to the improvements in the field of technology and changing needs of the people. Nowadays, most of the people are planning their lives and jobs through applications in their smart phones and it does not have a long history in human life. When the improvement that has been achieved in the last decade is considered, it is obvious that people will become more addicted to these applications and beyond that, they have the potential to become one of the primary needs of the society. This potential is the key point about companies dealing with technology products are the most valuable companies rather than food or textile firms. They have the potential to meet the needs of the people in next century and it is evolving day by day. New technology products also have a psychological effect on society that creates the need of using the latest product which is still investigating by psychologists. Of course, it is not the mobile phone itself but it is the applications in it that makes people more addictive for their phones. These applications generally create a social life for its users globally and it is the main point that these applications will be considered as the basis of next century.

When mobile application market is considered only from the trading point of view far from social effects, providing broad legal protection for a product, which is the application itself in this field, is one of the main necessities to make the most available profit out of the product. In the examples that are examined in this work, we have seen that most of the companies who are working in the field of technology are dealing with court cases related to IP issues of their applications. Smaller companies were dealing with “Patent Trolls” until the victory of Kaspersky Lab over them and Tinder and Bumble are still in a fight again because of a patent issue. In that case, another point was the trade secrets that former partner of the Tinder has established the Bumble and she is accused of using Tinder’s trade secrets. By this way, we can also see that IP law is very related to commercial law and has a big importance in the market.

From copyrights point of view, we saw that thoughts about protecting computer softwares through copyright is a topical issue since 1986. Mobile applications are essentially the computer softwares using in mobile devices so protecting computer softwares is the origin of IP protection of mobile applications. One of the landmark decisions about copyrights on computer programs in 1986 stated that copyrights should involve not only the codes but the general structural features existing in the application. Today, that decision is still in force and it is accepted that mobile applications are not only protected with their literary part (source code) but also the artistic work on them is protected individually. Its importance have shown in the second example that the famous game Flappy Bird is easily copied and thousands of clones of the same game is published in a short time period. It is the evidence of how fragile an idea is in this field and strictly protect a valuable work is the only way to have a commercial success.

In my opinion, trademarks protection is the most valuable one among these three protections. Building a strong trademark which has the power to control the market is only possible with good legal protection and preventing your trademark from being damaged. It is mentioned above that in 2018, most valuable trademarks are mostly the companies who are working in the field of technology. All of them have patent licenses, copyrights and trademark registrations for different products but it is not enough to protect the brand value but also using these licenses and registrations is important. In May 2018, United States Court has ended a patent battle between Apple Inc. and Samsung Electronics Co. and decided that Samsung is infringing some of the Apple’s patents and they were have to pay $539 million for those infringements.[32] As both of them are the giants of mobile application business, the main reason that this new is announced as a “Big Win” for Apple is that the decision has formed a sense on society that Apple’s designs, patents and R&D works are the original works and Samsung is just an infringer or a cheater. At this point, Apple not only gain economic income from their patents but they harmed the value of their biggest rival’s brand, which will effect Samsung more than paying $539 million in the long run.

To conclude, according to the cases that are examined and the regulations in IP field is thought as a whole, my opinion is to protect a mobile application firstly through copyrights because of its advantage of time limit and the rule of first-to-create rather than first-to-register. Keeping in mind that copyrights are not protecting the idea but the expression on them in a tangible form, following the completion of writing the source code of an application, first of all a copyright registration should be made with that literary work. After that, when the application is ready to be published, its structural features that are visible on the screen must have been registered before publication. As long as I see trademark protection as the most important one in comparison between three IPRs, copyright registration is the first thing to do before publication to protect the way that developer express himself and the code behind it to prevent arising of clones like Flappy Bird by using the same code. Secondly, trademark protection must have been provided because if the idea and its expression becomes popular among people, they will quickly memorize the name and the logo of the application. At that point, trying to prove that the trademark has become a well-known mark in a territory will be a long and hard way to walk and trademark will be harmed during that process. To avoid this and build a strong trademark, a global registration through national patent office by using Madrid System is a necessity. Patent protection is the last IP protection that a mobile application needs in my point of view because it is difficult to file a patent application file for a mobile application claiming that it involves an inventive step. Most of the applications are not patented because of lacking the inventive step. So for that reason, if the application is not a new step for the mobile technology, patent registration would be in the third place.

BIBLIOGRAPGHY

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