What Mobile App Developers Need to Know About App Trademarks

It’s been a long, hard slog, but after weeks of all-nighters, countless cups of java, and a brilliant idea or two, your mobile app is finally ready for deployment. However, before you gather up your final build and submit to your distribution platform, there is one other thing you need to consider—app trademarks for your new software application.

The difference between an app created with an understanding of trademark law and how it affects the modern digital marketplace and one created without such an understanding can be the difference between shovelware and the next big thing. Let’s talk for a minute about what a trademark does for an app.

Trademark Basics for Developers

First, though, we need to establish what app trademarks aren’t. A trademark isn’t your app’s code or functionality, which may be covered by other legal constructs designed to protect the big ideas at the core of the program. Instead, your trademark consists of the less tangible elements of your mobile app; things like logos, characters, and, above all, the name or title of your app. At its heart, the trademark—which may date back as far as the Roman Empire and medieval Europe—is intended to assure consumers that the goods and services that they have purchased are indeed the authentic product of a particular company.

Different Parts, Different Marks

As mentioned above, multiple elements of your app may fall under a trademark. For example, if you are programming a mobile game, the name of the app and the icon used to represent the app in the marketplace could be trademarkable.

For a restaurant-finding app, on the other hand, the program’s distinctive logo might be trademarkable. All apps, however, have titles, and a title might be considered a primary trademark attached to the product. That is, assuming the title meets certain criteria.

Understanding What Cannot be Trademarked

The standard for what is trademarkable and what is not is that of distinctiveness. A trademarked item needs to be unique enough so as not to be a part of common usage, to avoid things like developers trademarking common phrases or descriptive terms.

This is something of a spectrum, with highly specific terms with little direct connection to the product on one end and descriptive terms on the other. Consider an app for booking airline tickets on the go. An app called “Air Travel Booker” is on the descriptive side (not to mention rather boringly named), while “Fly2Freedom” is less so—it could be a travel app, or a game, or any number of other things.

Where Do You Fit In?

When you are preparing your app for trademark, you are going to have to consider on which end of the spectrum you want to sit. While descriptive terminology might make your app more searchable, it will also make any attempt to enforce your trademark much more difficult.

A more personalized and unique name solves that problem, and it can make your app stand out. However, it can also occlude the program’s intended function unless framed carefully.

Who Was That Masked App?

The standard often used to adjudicate whether a trademark has been violated also helps to define the use and purpose of this legal construct. This standard is that of likelihood of confusion or the chance that the usage of terminology and trade dress might fool someone into thinking that a product was made by someone other than its actual creator.

This works to the benefit of the trademark holder, in that it allows recourse to prevent work from being buried under identical clones. By maintaining and enforcing a trademark, the creators are able to carve a distinct place for their work in the marketplace.

Brand Identity and App Trademarks

This brings us to the subject of branding. Trademarks lie at the core of brand identity, in that they define elements that give identity to the products of a particular company. Brand identity functions for app creators on at least two levels: the identity associated with the product and the brand associated with the company that makes the product.

This identity can become a powerful part of what drives the sales of your company; highly successful brands like Apple or Google come to stand not only for a stable of products, but for a lifestyle and a set of beliefs. While your company might not be a household name (yet), building a strong brand, bolstered by well-deployed trademarks, might be the first step to getting it there.

Globetrotting Trademarks

Another area to consider is the global reach of digital goods. Certainly, the dream that your app could reach across the world is a hopeful and attractive one, but, in the absence of enforceable trademarks, it can instead become a nightmare of theft and copying.

To get in on the global revenue, an app’s designer needs the product to be protected, but local common-law protections may break down on an international scale. A registered trademark, although imperfectly protected by international law and treaties, can help give an app an enforceable international legal presence, helping to fend off modern international piracy and idea theft.

No trademark in the world, however well-defined and cleverly constructed, can make your app successful on its own. The work and genius you put into your programs will have to do that for you. However, one thing a lack of trademark can do is ruin your hard work by leaving a back door open for unscrupulous competitors to swoop in and carry off your work. Think your choices through carefully, and remember, trademarks can be your friends.

Xavier Morales, Esq.

About the Author:

Xavier Morales, Esq.

Mr. Morales founded this trademark law practice in January 2007 with the goal of providing intellectual property expertise to entrepreneurs and businesses around the country. Since then, he has filed more than 6,000 trademarks with the USPTO. You can learn more about Xavier here.

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