End User License Agreement
Applications made available through the App Store are subject to Apple’s Licensed Application End User License Agreement (“EULA”), unless the end user enters into a valid EULA with the developer.
The following provisions of Apple’s EULA are of special note, and should be adopted should you use your own EULA:
- Disclaimer of warranty: This provision states that the Application is being provided “as-is,” without any express or implied warranties regarding the Application’s quality, performance, effectiveness or reliability. In those jurisdictions where disclaimers of warranty are enforceable, such a provision protects the Licensor from potential legal claims arising from the use of the Application, as the Licensor makes no promises of any kind.
- Limitation of liability: This provision protects the Licensor from liability for personal injury, loss of profits, loss of data, or other direct and indirect damages arising from the use of, or the inability to use, the Application. This provision additionally places an upper dollar limit on the total damages for which the Licensor may be liable, excluding damages for personal injury in those states where such a limitation would be unenforceable.
Copyright and Trademark Protections
Both copyright and trademark registration are relatively affordable means to protect your investment in your software.
As a matter of law, copyright protection subsists in original works of authorship fixed in any tangible means of expression. The exclusive rights of reproduction, adaptation, and distribution are conferred automatically upon the owner of a copyright as soon as his or her work is written.
Although registering an Application is not a prerequisite for copyright protection, registration does afford several distinct advantages:
- Registration is required to bring an infringement suit.
- Registration within five years of publication creates a presumption of validity of the copyright and the facts contained in the registration certificate. Presumptive validity can be of critical importance when seeking a preliminary injunction or temporary restraining order requiring the copyright infringer to cease and desist.
- Registration prior to infringement allows for the recovery of attorney fees and statutory damages. (Because actual damages are often difficult to prove, the owner of a copyright may elect to recover instead an award of statutory damages in an amount between $750 and $30,000, as the court deems just. The court may increase this amount to $150,000 for willful infringements.)
Where a computer program containing trade secret materials is being registered, the Copyright Office allows you to deposit source code with the trade secret information redacted, or to deposit a combination of source code and object code, with up to 49 percent of the source code blacked out. Where an applicant is unwilling to deposit source code (even with portions blacked out), he or she may deposit object code only, but must state in writing that the work as deposited in object code contains copyrightable authorship.
Because of the difficulty in reading object code, depositing your program in this form will generally protect any trade secrets contained in your code. However, because the Copyright Office cannot read the object code to determine if your program constitutes an original work of authorship, your program will be registered under the Copyright Office’s “rule of doubt,” and you will accordingly lose one of the primary benefits of registration — that is, the presumption that your copyright is valid.
A trademark is any word, name, symbol, or device, or any combination thereof, that identifies to consumers the source of a product, and allows trademark owner to distinguish their products from the products manufactured or sold by others.
Federal registration of your trademark confers several important advantages:
- Exclusive use of the mark for particular goods and services on a nationwide basis. (Note: Without federal registration, an owner’s right to use a trademark is limited to the actual geographic area of actual use of the mark.)
- Access to the federal courts to enforce your rights, including double or triple damages in the event of willful infringement (which is presumed if the infringed mark was on the federal principal trademark register).
- Constructive notice of trademark protection, and prima facie evidence of the registrant’s ownership and exclusive right to use the mark.
- Right to achieve “incontestable status” after a period of five years of continuous use, thereby reducing the ability of infringers to challenge the validity of the mark on the basis that it is not sufficiently distinctive.
In selecting a name to be trademarked, it is important to adopt a strong (or distinctive) mark, as the level of protection against infringement of a trademark varies according to the “strength” of a mark. Generally, “arbitrary” and “fanciful” marks enjoy the greatest protection, whereas “generic” marks are not registrable, and can therefore never achieve federal protection. Apple, in referring to computers, is an example of a strong (here, “arbitrary”) mark because the word “apple” bears no relationship to the product or service the mark represents. On the other hand, the term computer in the software industry is irretrievably generic and would never be afforded trademark protection.
Together with copyright registration, trademark registration should be considered as an additional step to protect your intellectual property rights in any Application you develop.