Graphical User Interfaces
The graphical user interface is a form of user interface that allows users to interact with electronic devices through graphical icons and audio indicator such as primary notation, instead of text-based user interfaces, typed command labels or text navigation.
Introduction. Graphical user interfaces (GUIs) play a significant role in improving the usability of the software system, enabling easy interactions between user and system. Thus, a well-developed GUI is an important factor for software quality.
A GUI (graphical user interface) is interactive components such as icons and other graphical objects that help a user interact with computer software, such as an operating system.
One of the key components to a mobile app is the graphics features in which the user interacts with.
The ease with which a consumer can use an application is crucial to its success, consequently the GUI is critical in the application actually being used
The GUI can be broken down into 3 parts
- The overall interface outlay
- The individual components comprising the desktop
- The animated features that are a result of a user interacting with either 1. Or 2.
As GUIs are a vital element to the success of an application, it is essential to legally protect them
Intellectual property provides certain avenues for the protection GUIs
Copyright protection for the software code may not always be enough, as different coding may result in the same or significantly similar GUIs.
Copyright protection may need to be assessed based on what is seen on the screen as opposed to the coding.
However, there is no ‘one size fits all’ clear answer as to whether copyright protection extends to the appearance of the desktop, as the answer depends on the GUI feature in question and the overall circumstances of a given instance.
COPYRIGHT – THE OVERALL INTERFACE
In order for the overall appearance of a desktop to attract copyright protection it must be:
- Not dictated by functionality
Although many elements of a desktop may be commonplace, certain aspects may still be original, the selection and arrangement may warrant copyright protection, even when the aspects may be considered individually as commonplace
For it to be protected by copyright, the interface cannot be dictated by functionality-This would render the interface ineligible for copyright protection.
COPYRIGHT INDIVIDUAL COMPONENTS & ANIMATED EFFECTS
For an icon to warrant protection, it should contain an embellishment, e.g. using an arrow to represent a pointer will likely not afford protection
Menus may also be protected, provided they are original and non-functional
Originality in the selection, arrangement and organization of the menu commands will make it easier to establish copyright protection
Animated effects typically represent some form of idea and consequently require a level of arbitrary embellishment to overcome the originality and non-functional requirement necessary for copyright protection.
In certain jurisdictions, the aesthetic or ornamental elements GUIs can be protected by design law. Design protection varies by jurisdiction: for example in the US and Japan they are protected via design patents while in the EU they are protected via registered community design (RCD).
A design patent is infringed when an ordinary observer would be deceived by two designs being substantially the same which could lead to the observer purchasing one product thinking it was the other.
The RCD regime in the EU protects designs that are novel and have ‘individual character’
In the EU there is no substantive examination prior to registration, i.e. protection takes effect once registration is completed
In case of an allegation of infringement post registration, an alleged infringer may rely on two lines of defense:
- Defendant’s design produces a different overall impression
- Defendant may try to invalidate design
For invalidating a GUI – based registration, the technical function exclusion may be raised by demonstrating that the feature in question was ‘dictated solely by its technical function’
However, if the GUI had design alternatives when it was created and the motivation for the design was not purely functional, the said exclusion is not likely to ‘bite’.
In the EU there is also an assessment of the ‘overall impression of the design which aims to determine whether the design provides the informed user with a different overall impression from previous designs made available to the public.
For a GUI to be considered as a source of origin it necessary to demonstrate that its non-commonplace character must be capable of being perceived by the public as an indication of origin
This is a high threshold as consumers need to be able to recognize the source of origin of a product by just looking at the GUI and no other branding related signs
Issues in relation to trademark protection for GUIs concern the registration, distinctive character of the mark, functionality, priority of registration, and maintenance of registered mark.
TRADE MARKS CONT.
GUIs including animation may be more complex to register
Certain jurisdictions allow for the registration of motion or multimedia marks
The subject matter of a trademark application needs to demonstrate some distinctive character and cannot be merely descriptive
Distinctiveness must serve as a designation of origin
This may not be straightforward to achieve in relation to GUIs, so it may be necessary to establish that a distinctive character has been acquired through using the GUI in the market place.
Graphical user interfaces, or GUIs, are not able to be trademarked because they are functional portions of a product your company creates, and not used for the marketing or branding of the products or services offered by your company. That said, you can possibly protect a GUI using design patents and copyrights
Under unfair competition law, it may be possible to seek a remedy against a party who appropriated the GUI of a mobile app, which serves as an indication of origin.
No registration is required
Common law jurisdiction
- The plaintiff would have to establish that the defendant’s actions amounted to misrepresentation and led to deception,
Civil law jurisdiction.
- Unfair competition laws are broader and establishing liability may be possible without evidence of consumer confusion.
However, unfair competition laws tend to be less predictable and it would be of greater benefit to register a GUI or parts thereof as a TM where possible.
Where the relevant aspects of a GUI are functional and designed to achieve a technical purpose, it may be possible for a developer to seek protection under patent law
The US position
- It may be difficult to obtain patent protection for a GUI because the applicant would have to show that the patent improves the functioning of the computer/hand-held device itself or an existing technological process, usually not the case.
- This would require the applicant to show that the GUI has some extra special elements for it to be awarded patent protection
- It is prudent to seek legal advice on this matter
- It is difficult to establish the existence of these additional elements
The ‘presentation of information’ and programs for computers are both excluded from patent protection, to overcome these exclusions, the features of a GUI must possess a technical character.
Although in the past the EPO may have granted patents for features of a GUI that lowered cognitive burden, it appears that this is no longer sufficient for establishing technical character.