Is an app considered a startup?
Current start-up dates
If you want to start a company with your own app idea, don't just put your heart and soul into the project. You also run an economic risk. Therefore, many founders ask themselves what legal claims and options they have to legally protect their idea or project. And that is - to anticipate it - a controversy that has been hotly debated for years, especially in IT projects. For this reason, we would like to give an overview together with André Stämmler, an IT / media lawyer and lecturer at the Ernst Abbe University of Jena.
Apps are creative achievements
Computer programs - and thus also apps - are the result of creative work. "For this reason, they are primarily protected by copyright law in Germany and are regulated there in §§ 2 and 69a-g of the UrhG," said lawyer Stämmler. “However, this paragraph also states that the underlying ideas and principles are not protected,” adds Stämmler. You cannot legally secure an app idea itself.
The legal subject of protection relates purely to the program code of an application. It is seen as a linguistic work of language. No formal requirements are necessary for this protection. It is created automatically in Germany when it is created. To the layman, that sounds like uncomplicated protection at first. But if you look closer, it's a little more complicated. Imitation is difficult to avoid with copyright law, since different source codes can be used as the basis for the execution of a functionality.
Apps and patent law
At this point, the patent law ties in, which assesses the functionality that is carried out by the source code. But here the opinions differ. Because actually it says in the German Patent Act (PatG) that programs for data processing systems in particular are not regarded as inventions for which patents are applicable. “However, this only applies if protection is required for the software as such - and not for a process or a procedure that is carried out by the program,” explains Stämmler. In addition to the German Patent Act, there is also the European Patent Convention, which contains a similar clause. In addition, there are agreements (Strasbourg Agreement, TRIPS Agreement) in which the software is not listed as an exception. This reflects the two camps that face each other in this discussion.
It is interesting that the patent laws in the USA - which also belong to the TRIPS agreement - are more liberal and have lower requirements, which means that patent applications for software products are not excluded from the outset. Especially the advocates of the open source software culture, however, see the patenting of software critically, since the publicly accessible source codes offer a target for patent holders. Other voices affirm that a large part of the software consists of components that already exist and that patent protection therefore makes little sense.
"The fact is, however, that it is actually not possible to register software as a patent in Germany," summarizes IT attorney Stämmler again. "However, such cases must always be viewed in a differentiated and individualized manner," he adds. "Above all, we have to follow the rulings of the BGH, which indicate a direction that is currently more in the direction of patent protection."
Protective measures for your app idea
However, there is an armada of lawyers and time behind these proceedings. Time that you don't have as a founder (in terms of fear of imitators). You are therefore wondering what options you still have to protect your app idea. Think about the app name or the app design. "The more individual the name, the easier it is to have it registered with the DPMA (German Patent and Trademark Office)," confirms André Stämmler. “The prerequisite for trademark protection of a name is that it is distinctive from other brands. The name 'football app' would have little or no chance of being registered, ”he continues. You can also have characters or logos protected in a certain context as word, figurative or word / figurative marks.
In addition, there is the Design Act, which grants legal protection to designs that the Copyright Act does not grant. This is particularly interesting for app projects, as design concepts for websites and apps can also be protected with the aid of the design law. Both trademark law and the design law enable you to secure app components that are very important from a competitive point of view.
All entrepreneurs who have already managed an IT or app project know what it takes. It is accordingly unlikely that someone will anticipate you with your idea. In addition, a good idea is by no means a guarantee of success. Above all, it depends on the implementation. If there is nevertheless a competitor on the market, then you see it sportily: competition stimulates the market. Incidentally, for the implementation of an app project, it is advantageous that ready-made solutions for certain functionalities already exist. This reduces development time and thus also costs.
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