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Brand Considerations When Launching Mobile Phone Apps

By Bruce Goldner and Shivram K. Sankar

As smartphones, such as the iPhone', Android', and BlackBerry', have become for many both a coveted accessory and a necessity for everyday life, the number and diversity of mobile phone applications (“Apps”) has exploded. Businesses, in turn, are launching mobile Apps in record numbers to reach consumers and maintain and increase market share. New devices, such as the Apple iPad', are providing a platform for even more sophisticated and complex Apps. However, prior to launching Apps on smartphone devices, it is advisable that brand owners pause ' even if momentarily ' to consider the new trademark and related legal issues that this new medium presents.

Unlike online media generally, where a business can publish and distribute software applications and tools under its own guidelines and parameters, development in the App medium is constrained by the guidelines and rules set forth by a limited universe of third-party smartphone providers (e.g., Apple, Inc. (“Apple”), Google, Inc. (“Google”), Research in Motion Ltd. (“RIM”), and Nokia, Inc. (“Nokia”)). Prior to launching an App, App developers are required to enter into one or more click-through App license agreements with the smartphone provider (“App Agreements”). These App Agreements contain detailed terms and conditions governing the creation and launch of the App, and provide for intellectual property licenses between and apportioning liability among the App developer and smartphone provider. As a general matter, these agreements are non-negotiable and binding the moment that the App developer clicks assent.

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