After working on your product for weeks, after writing the ideal business plan and studying your market from every angle, you are finally ready to launch your mobile application! However, did you take into account The legal aspect of your project? Do you know the legal constraints that could impact your project in terms of product but also in terms of development?

To answer these questions, I was accompanied by Maître Ouamara, a lawyer specializing in competition and distribution law. Together, we've written this article to guide you through this legal jungle.

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Can we copy the functionalities of an existing application?

Mobile applications are omnipresent in our daily lives, and very often have many alternatives. Among the most popular offers, there are applications that connect travelers with private drivers such as Uber, Bolt, Freenow or Heetch. Despite the fierce competition in this market, these companies have all chosen to offer identical functionalities to satisfy their users: search for races, visualization of cars available in the area, choice between several ranges of cars for a race, etc.

But then, is it possible to copy features of an existing application to offer a similar service?

The Court of Justice of the European Union answered this question clearly: there is no legal basis to protect the functionalities of software, and has Fortiori, of a mobile application (1). The functionalities are said “not appropriate” and companies can freely offer a competing offer by offering identical functionalities, without being blamed for an act of counterfeiting.

This decision is aimed at encourage innovation and to promote competition between companies, by preventing monopoly situations from being created as soon as an application offers a new service, which would encourage abuse of a dominant position. The corollary of this decision is that the functionalities of an application cannot be legally protected, even if you were the first to offer them.

Now that you know you are free to create the features you want, you need to think about the image you want to give to your application. The brand you're going to create is a crucial part of that image, and it's important to understand the legal boundaries that must be respected in the creation process. So, we're going to look at these limitations in detail to help you create a strong, legally compliant brand for your application.

Can we copy an existing brand?

As a new business in a market, you may be tempted to take inspiration, more or less strongly, from a pre-existing brand. This is in order to take advantage of the reputation of these players already present in order to capture their customers.

To use the example of the VTC reservation service, one could imagine creating a new application, called, cartoonishly, “Uuber”, in a reminder of the “Uber” brand.

On paper, this may seem like a good idea: by creating ambiguity between the two brands, you will then benefit from unintended downloads on stores that would be beneficial for your business. You could even go a step further by choosing a similar logo to create more confusion.

However, unlike the functionalities, the trademark of the application, if it has been registered, is protected by the intellectual property law against acts of counterfeiting. In law, a trademark is a sign that allows distinguish products and services that are sold by a business This sign can be characterized in particular by various elements such as a name, a logo, components of a graphic charter or even a slogan. By registering this trademark with the competent authority (the INPI in France), the applicant obtains the monopoly of exploitation on this brand, which thus allows him toAct in counterfeiting against anyone who reproduces the brand's signs without their authorization.

For these reasons, creating an application for the same service, with the name “Uuber” by simply adding a letter can characterize a act of counterfeiting because that is an insignificant difference. The underlying idea is that such reproduction for the purpose of offering identical services will create confusion between the two applications that would unfairly allow you to capture customers of the Uber brand. Taking advantage of the position of players already present by copying elements of their brands may seem like an attractive strategy to capture a customer base, however, This approach should be banned to avoid legal proceedings., in particular, in connection with an infringement action.

Once you have defined the functionalities you want to include in your application and created a distinctive brand for it, you can move on to the crucial step in creating the application: the development. Before you get started, it's important to understand the laws and regulations that govern the protection of your application's source code. In the next paragraph, we'll look at these rules to enable you to code your application in full legal compliance.

Can you copy code from an existing application?

When creating an application, the functionalities it offers are often considered to be the most important. However, without quality computer code, these functionalities could never be realized. The code is the skeleton upon which the entire application is based. During development, the costs associated with creating the application are strongly linked to the duration of developments. Being able to have access to existing computer code would therefore make it possible to meet a strong need: reduce development costs.

There are many ways to access the source code of an application or software. First of all, we find code leaks on the Internet: this year again, for example, the source code of the social network Twitter was made available on the Github platform, A prima facie by an employee dissatisfied with his dismissal (2). Each person with an Internet connection had the opportunity to download a copy of this code onto their computer. But be careful, just because you were able to download it does not mean you have the right to use it!

Indeed, it does not matter how to access the code. Whether during a leak, working collaboratively with the code editor, or using decompilation tools, this one can be protected by copyright. Unlike the registration required for a trademark, copyright can protect a code as soon as it is created without specific actions on the part of the author (if certain legal conditions are met, see the rest of the article).

It should be noted that the term “code” is not a legal concept, we rather speak of “software”, which includes several elements such as code, APIs, documentation etc... These elements, depending on the particular case, may or may not be protected. To be considered original and to benefit from copyright protection, software must:

Resulting from a personalized effort bearing the mark of The intellectual contribution of its author. Conversely, software based on automatic and binding logic does not result from the free and creative choices of its author and cannot be protected by copyright (3).

For example, let's say your application communicates with an API. If the code uses an innovative approach to query the API, handles errors in a particularly effective way, or implements additional features that improve the user experience, then it can be considered original and therefore copyrightable. Conversely, if the code simply uses common libraries to query the API and follows standard design patterns without making significant changes, then it cannot be considered to be quirky and therefore cannot benefit from the safeguarding of copyright.

If the code is protected by copyright, then the use of it is only possible by having The owner's agreement, whether via, In particular, a license agreement. Just as you can't make a copy of a CD without permission, you can't copy code from an existing application without permission. Without this list being exhaustive, remember that the reproduction, the modifying, The adaptation, total or partial, by any means and regardless of the form, for a protected code without authorization, are strictly forbidden. It is therefore strongly recommended not to use these elements without the explicit and written authorization of the code holder, otherwise legal proceedings may be initiated, even for private use.

The risk involved in copying the code and its consequences should not be underestimated. Indeed, it is in the code that a large part of the value of the company is found. Copyright infringement is a sensitive issue that businesses protect themselves against. Some introduce”markers“in their code, a trick that allows them to easily identify a possible counterfeit. Subtle comments scattered at key points in the code can thus be used as evidence in the event of a dispute.

It also happens that evidence is provided unintentionally. This is the case in a case that was tried in Marseille. During an expertise on the offending code, experts noticed striking similarities between the spelling errors present in the counterfeit code and those in the original work. This element, combined with other elements, led to the conviction of the person who had copied the code in order to make it a use characteristic of counterfeiting (4).

Conclusion

This article allowed you to be aware of the law governing the creation of mobile applications, in particular concerning intellectual property, and in particular, copyright. To do this, we went through concrete situations, for which we analyzed the risk incurred. Beyond these situations, it is important to understand that legal rules are complex and that each situation, presenting different contextual elements, makes it impossible to provide an exhaustive answer for all the particular cases in a single article.

To go further, you can consult The website of the Agency for Program Protection which will allow you to have reference texts and some useful links. Finally, in case of doubts about your situation, it would be advisable to contact a professional who can assist you.

(1) CJEU, 2 May 2012, C-406/10

(2) https://www.01net.com/actualites/le-code-source-de-twitter-partage-sur-github-un-risque-majeur-pour-les-utilisateurs.html

(3) Ass. Plén., 7 March 1986, appeal no. 83-10.477, Published in the bulletin; Case 1^era civ., September 22, 2011, appeal No. 09-71.337; Cass. 1^era civ., November 14, 2013, appeal no. 12-20.687.

(4) Marseille High Court, September 7, 2000.