With the number of smartphone users in the world estimated to be around 3.5 billion, it is more important than ever to protect the intellectual property (IP) of such devices. Technical features of the devices and software running on such devices can be protected using patents and copyright. In this article, Andrew Flaxman looks at the extent to which graphical user interfaces (GUIs) can be protected using registered designs, and the potential pitfalls to be aware of.
What is a GUI?
GUIs are visually presented interfaces that allow us to view computer-generated content and, in many cases, to interact with machines and computers. For example, an operating system of a computer, tablet or smartphone typically provides a GUI to enable a user to load software or applications. A GUI may include any kind of imagery, including icons, characters and virtual buttons, and may enable a user to enter data using a keyboard, a mouse or a touch input via a touchscreen, for example.
What is design protection?
Registered designs are intellectual property (IP) rights that can be used to protect aesthetic elements of products. In contrast to patents, which protect technical aspects of inventions, designs provide right owners with protection for the way a product looks. While design protection is available in many jurisdictions around the world, we focus primarily in this article on design rights available in the UK and the European Union (EU).
What can be protected?
UK registered designs and designs registered by the EU Intellectual Property Office (known as EU designs or registered Community designs) can both be used to protect “the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture or materials of the product or its ornamentation”, which covers two-dimensional designs such as GUIs, icons and graphic symbols. Therefore, the appearance of the whole or a part of a GUI can be protected using registered designs in the UK and in the EU.
The scope of protection afforded by a registered design is defined by what is shown in the design’s representations – a set of images typically showing views of the product to be protected from several different angles or perspectives.
When using registered designs to protect GUIs, it is important to show only those parts of the GUI in the design drawings that are intended to be protected, and not content of the GUI that is likely to change with use or with user interaction, or content that is specific to a particular user. In many jurisdictions, content that is not to be protected can be excluded from protection either by omitting it from the design representations or by showing it in dashed lines.
EU design no. 000748694-0003 (Apple Inc.) was the subject of an invalidity action brought by Samsung Electronics in 2013 as part of a series of high-profile IP cases between the two electronics giants.
EU design number 007803127-0010 (Google LLC) shows some portions of a GUI in dashed lines to indicate that are not to be protected
When preparing design drawings, it should be borne in mind that any colour included in the drawings will almost certainly limit the scope of protection to the colours shown. Therefore, it may be appropriate to illustrate any GUI features without colour, for example by using black and white line drawings, for broadest protection.
In many jurisdictions, including Europe and the UK, protection for a GUI can be obtained for the GUI itself, and it is not necessary to show the device (e.g. the screen of a smartphone) on which the GUI is to be displayed in the drawings of the design application. Care should be taken in some jurisdictions (notably the United States and China), however, where the there is a requirement for device to be shown. In some jurisdictions, it may be possible to disclaim the device using a written disclaimer.
While static GUI elements (e.g. icons) can easily be depicted in design drawings, it is not as straightforward to illustrate elements that change appearance over time in a single drawing. However, moving elements, such as animations, can also be protected using registered designs. Both the UK IPO and the EU IPO allow protection of animations of GUIs by filing a series of static images illustrating various states of the animated sequence.
EU design number 001216329-0015 (Microsoft Corporation) shows a sequence of images of a GUI animation
It is worth noting that an EU registered design may contain up to seven representations, while a UK registered design may include up to 12 representations, so more stages of the animated sequence can be shown in a design registered in the UK.
The registered design regimes in the UK and in the EU can provide particularly effective and powerful protection for the appearance of both static and animated elements of GUIs, and can complement the protection available through patents, copyright and trade marks. Care should always be taken when selecting and preparing the images used to represent the design to ensure that the protection obtained in a design registration is as intended.
For more information about registered designs, please get in touch with Andrew Flaxman or your usual Haseltine Lake Kempner contact.
 Source: Statista