With the emergence of smartphones and tablet computers, the development of mobile applications is a booming business. In order to showcase their own and third party applications, several companies have put into place mobile application distribution platforms, including Google’s Android Market, Apple’s App Store or R.I.M.’s Blackberry App World. More than 20 billion applications have been downloaded via these platforms, which propose several thousand new applications each day. To date, there are approximately 40 such platforms, the number of which is constantly increasing.
Both the applications themselves and the pages on the platforms are susceptible to infringe IP rights. Among the most frequently identified violations, which are susceptible to constitute infringement or unfair competition:
- reproduction of a trade mark in the title of an application
- reproduction of a trade mark in the application itself
- development of clones of existing applications
- reproduction of trade marks in wallpaper and other personalised aspects of the terminals
These types of breaches are not new in the IT world. However, the specificity of the apps markets are so that they create a concentration of these breaches and increase their effects by segmenting the search results (principle of vertical search engines). Accordingly, an infringing application can be well ranked on a platform on which the number of applications in the same category or associated with the same key words is not very high. Furthermore, the content of the platforms is not necessarily indexed on the principal search engines. Therefore, a watch of the principal search engines will not necessarily identify these breaches.
The liability regime applicable to these downloading platforms will depend on the facts of the case. Indeed, according to the French Supreme Court, authors of titles and hyperlink texts qualify as editors, as defined by French press law, if they determine and check the content of the site, and play an active role, having knowledge and control over the data stored. Conversely, the platforms may benefit from the limited liability regime applicable to hosting providers, if their role is neutral, in the sense that their conduct is merely technical, automatic and passive.
In the case of the applications market, the titles and the content of the applications and the corresponding pages are determined by the developers (in accordance with the platforms’ T&Cs). In terms of control of the content, each platform applies its own policy. For instance, App Store, App World and Android Appstore have all put into place procedures for checking new applications, the scope of which varies greatly. These platforms could accordingly qualify as editors, making them liable for the content of the applications which they propose.
In any case, during the sole month of February, Android Market received 206 notifications half of which involved trade mark rights. Thirty-one notifications came from Facebook, further to the reproduction of its trade mark in the title or the icon of a third party application.
Rights holders are therefore well advised to monitor on a constant basis these new platforms in order to identify any unauthorised use.
 French Supreme Court, 17 February 2011, Mr O.X. v. Bloobox.net
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