Replication of UIs: Most overlooked Intellectual Property theft

The recent Zoom- JioMeet fiasco brought in the burning question of protection of UI as an
Intellectual Property in the limelight. JioMeet has blatantly copied everything from the Zoom
App but the font size & color scheme. The uncanny resemblance between the two brought in
a lot of ridicule for the Reliance conglomerate. This is not the first time that Reliance has
cloned a popular application, the telecom giant’s JioChat seems like a Facebook owned
WhatsApp rip-off, post the facelift recently. This article deals with India’s standing in this
division of IP protection and the immediate need to fortify the hard work by the software
developers.

What is a GUI?

Graphical User Interface (hereby: User Interface/ UI) is the node between an electronic
device and its user. This nexus is established on various graphic elements namely, icons,
menus, text boxes, scroll bars and animated features. Significant development in the tech
ecosystem came in with the introduction of user-friendly interactions which left behind older
user interaction type (text-based commands). The success of any mobile application majorly
relies with how well thought a UI design is, making it accessible & easy to use for users of all
age groups. Protection of UI’s against imitation & emulation is the need of the hour.

Protection of GUI: How Indian Laws Protect the Interface

The Design Rules, 2001 through its Third Schedule protects the rights of design creators and
innovators in India. GUI designs are safeguarded under the same umbrella in consonance
with the TRIPS. New or original features of shape, configuration pattern, ornamentation or
composition of lines or colours as applied to an article both 2D & 3D can be registered. In the
2008, a new classification of goods was introduced by amendment of Third Schedule, to
comply with the Locarno Agreement on International Classification for Industrial Designs
(1968). A new Class 14-04 was dedicated to ‘Screen Displays & Icons’ via this classification
system.

The Design Act, 2002 recognised the protection of GUIs but the Indian Design Office, has
been unwilling. They argue that the GUIs do not qualify as an article of manufacture & thus
debar them from claiming any protection as a design. The Indian Design Office has initially
granted protection to Microsoft Corp for ‘Screen Displays & Icons’ but in Class 14-99 under
the ‘Miscellaneous’ category (Design nos. 203426 for screen display and
207261,201993,206626,206627 & 206628 for icons).

In 2014, the registration office rejected the application by Amazon under Class 14-02. The
Controller refused the design because the GUI was providing supplemental information of
digital work on a display screen and the office could only accept design on the basis of the
classification only. The impugned design did not qualify to fall in the bracket of design as
defined under Sec 2 ‘a’ & 2 ’d’. A GUI cannot be considered a comprehensive article as it
does not contain a shape or configuration. After this case, the design office has taken a
stricter cognizance in the interpretation of ‘article’ in the Act.

Later, another GUI design was registered in India in Class 14-02 claiming to be a priority
against an International Design Application which was pending in Class 14-04. To obtain the
protection the applicant filed the application in relation to touchscreen in Class 14-02.

Application (Design No. 243808) by the Visa International Service Association amended the
Class for the Miscellaneous items to 99-01 for touch or mobile screen. This was a priority
application for ‘GUI for an account identifier’ against a US based design application.

The stand of the competent authority is hazy and unpredictable and voice that screen displays
cannot be protected in a broad sense.

Brief History: Software Copyrights to GUI Protection

Issues pertaining to User Interface Protection leads its way back to software copyright issues
which form the basis of these rights. Starting with the case of Apple v Microsoft where Apple
alleged Microsoft & Hewlett Packard for copyright infringement & breach of contract. The
Court held that Windows 2.01 & 3.0 did infringe their user interface and did not exceed the
scope of license between the two. Microsoft’s visual display were an unauthorised used but a
vast portion of the GUI was display, not capable of being copied, hence no copyright
infringement. Microsoft’s use of Apple’s GUI was ‘white label’. It was submitted that the
decision did not stand against GUIs being copyrighted.

In the case of Lotus v Paperback the Court held that the mere idea is not copyrightable but if
the GUI is manifested by a variety of expressions, then such expressions are copyrightable. If
a GUI is a mode of expression then it deserves to be protected under the IP laws. Paperback
was held liable for infringement of copyright of the GUI.

In another case of Lotus v. Borland, now Lotus was alleging that Borland had developed a
‘visually identical’ copy of its entire 1-2-3 menu. The court overruled the findings of the
lower court which granted Lotus protection under copyright laws. It applied abstraction-
filtration-comparison test to do away with copyright protection for the GUI. It held that
Borland could achieve the same result by applying different mode of operation, hence no
infringement of copyright for GUI occurred.

Uncertainty in the Indian Law

Ambiguity persists in the matter whether GUIs should be protected under Copyright Law or
Design Law. A GUI may qualify as ‘artistic work’ and can be protected as copyright while
simultaneously be registered and protected under the Design Act. Under the Design Act, the
protection is limited to use of design in an article and not its reproduction on other articles. It
does not protect the graphics, labels and logos as they are not applied to any article. The
Indian Design Rules are silent on a Class 32 of the Locarno Classification.

While the US Design laws permits to enclose the designs for registration in a box of broken
lines signifying that it will be used on a screen, the Indian Design laws object to use of dotted
or broken lines as they denote the elements of the article to be excluded from protection.
Dotted/ broken lines indicate elements which are not a part of the design according to the
understanding of the grant office. The Locarno Manual is overlooked by the registration
examiners.

GUI Protection & Unfair Competition

Development of a similar mobile application as an alternative for the users is a permissible

act. If the alternative app is exactly like its prototype then the owner of the prototype may
seek remedy. In common law jurisdictions like India, the plaintiff will have to establish that
the replica app lead to misrepresentation and deception of the target users as appropriation of
the GUI of the original app indicates to the original work. The unfair competitions laws grant
a remedy even without evidence of consumer misperception. It would be easier to claim
unfair competition if registration of trademarks of GUIs was in practice.

With respect to mobile applications that run on the Android OS, Google PlayStore has taken
measures to protect copyrighted content of the application. Under ‘Impersonation and
Intellectual Property’ Policy, PlayStore does not allow any applications that use an alternative
applications or their content which may lead to impersonation to deceive & mislead the users.
Any implication for a relationship with another application may lead to the wrong even when
intention to do is absent. The policy is applicable to non-participating application/ brands that
may have been copied. Moreover, the policy does not allow applications that infringe
copyrighted material of another developed applications. Modified or derivative works may
still be an intellectual property wrong. Creators may have to produce evidence conforming
their right to use a protected content.

In the case of Zoom & JioMeet, Zoom may claim unfair competition as the new application is
deceptively similar to the old and may lead to confusion among the users. Even when
JioMeet did not use the exact same colour, a layman cannot differentiate between the two
shades of blue.

User Experience v. User Interface

In the emerging era of Internet of Things, Virtual Augmented Reality and wearable
technology, effective User Experience is the backbone of Applications and its GUIs. Users
expect one application to work in the same way the other similar applications do. Jacob
Neilson’s law of User Experience explains that users expect a certain application to work in a
way they have been using it already. The machine-human interaction is based on the
psychological understanding. If the user is familiar with the UI, one would want to use it all
the more making the application successful. This psychological study limits innovation in the
area of UI designs and encourages production of repeated derivates or basic copies of UIs
which in turn will lead to more infringement of intellectual property rights. User Experience
leads to expectations in the face of an IP wrong.

Need for Stringent Laws for GUI Protection

Looking at the bare text laws & precedents related to UI protection in India, stricter laws
have become a prerequisite. Graphical User Interfaces represent the multi-billion-dollar tech
commerce and their protection seems necessary. The tech gadgets run on multi-faceted
products which can be protected with various IP laws but the UI is the spine of a screen
which entails better defence mechanism for the industry to stand straight. Ignorance to the
duplication strategy will curb innovation for good. India needs to wipe off the haze from its
UI protection laws.