IPR infringement and mobile apps – why Apple provides an online reporting tool

Last week’s iOS Dev Weekly email contained an item on the online facility provided by Apple to allow you to report alleged IPR infringement issues with apps on the App Store:

…If you are having copyright or trademark issues [or in fact any other IPR] with your app Apple now have a dedicated App Store process for dealing with this. What I found interesting about the description of this is that it states that it will put you directly in contact with the provider of the disputed app. Surprising.

From Apple’s perspective, this actually makes a lot of sense. Here’s why.

Pretty much anyone can publish an app for distribution by Apple through the App Store. However, whilst Apple does do some quality control on apps that are submitted, it doesn’t have the resources (or time) to carry out an indepth analysis of whether the submitted app infringes any third party IPR. It simply isn’t cost effective for Apple to do so, given the global nature of the App Store – researching whether a particular app infringed third party copyright, patents or trade marks in various countries around the world would cost many, many, thousands of dollars.

This means that there is a very real risk that apps available for sale on the App Store might infringe a third party’s IPR – whether through deliberate infringement, unintended copying, being unaware of a pre-existing patent (whether in the same territory or abroad) or simply the sale of an app by, say, a British registered trade mark holder in a country where the trade mark in question is already owned by someone else.

The dispute process
When an IPR infringement claim does come to light, for the reasons given above it is not practical for Apple to investigate it. It just isn’t worth its while as there’s no financial benefit to Apple from doing so, and Apple is unlikely to have the information required to respond to the complaint. So, instead, it makes much more sense for Apple to provide a facility for complainers to submit a claim straight to the person or organisation that submitted the allegedly infringing app so that the two parties can sort out the dispute directly.

In the meantime, in my experience Apple will suspend (or threaten to suspend) the allegedly infringing app. This keeps Apple in the clear in terms of any alleged infringement by Apple (remember, Apple is simply an agent (or Commissionaire) – it doesn’t licence/sublicence non-Apple apps to end users) and its obligations under the DMCA, as it has taken action as soon as it became aware of the issue, and puts the onus on the recipient of the infringement claim to sort it out so that it can get its app back on the market.

Of course this approach isn’t without its problems – particularly for those on the receiving end of an infringement claim, as the online reporting tool is open to vexatious and frivolous claims, with the onus on the recipient to then demonstrate to Apple that there isn’t an issue. But for aggrieved rights holders it provides an effective way of raising IPR infringement issues directly with the alleged infringer.

Be prepared
It also emphasises the importance of thinking about your IPR before you launch your app.

Are you comfortable that your chosen brand won’t infringe that of a third party? Have you thought about who owns IPR in foreign jurisdictions before you launch an app globally? Are you sure that any third party code utilised in your app is properly licensed? Have your developers assigned across ownership of any code they create? Have you taken steps to register any regiserable IPR that you create?

To learn more about protecting your IPR, download our free guide.

PS It’s not just Apple. A quick check reveals similar facilities on Google Play for copyright infringement and trade mark infringment (although on the latter it appears that Google will actually carry out some investigation itself).

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