Registering your Graphical User Interface (GUI)
Technology has become embedded into our daily lives.
Ever-increasing numbers of companies are investing their resources into making mobile phones, tablets and laptops and other devices featuring a GUI. They need to protect GUIs that they have developed.
What is a GUI?
A GUI is a type of user interface that allows users to navigate around an electronic device (e.g. a computer, tablet or a smart phone) and complete actions through graphical icons and visual indicators.
Can you register your GUI in Australia?
GUIs can be registered in Australia as a design.
Enforcing them against infringers is a different matter.
Virtually any original design for a product can be registered in Australia provided it passes the initial formalities review. That includes giving IP Australia information that proves the design owner’s identity, payment of fees, contact details for the applicant, and a clear representation of the design.
However, that’s only the first step. To enforce a design in Australia the registered design has to be examined for validity and, if it’s found to be valid, a certificate then has to be issued by IP Australia. Once that certificate is issued and the registration becomes certified as valid then the registered design can be enforced against a third party.
Currently, the Australian Register of Designs contains a number of registered GUI designs but only a few have proceeded to examination and certification.
There is a debate about whether or not they can in fact be registered (ie are they a registerable “product”). However, that should not stop at least registering a design even if you don’t get it certified. Getting the design registered is better than having nothing to protect your IP rights in a GUI.
How can rights in GUI be enforced in Australia?
Australian Courts have not yet considered the validity and enforceability of a GUI design registration. However, if a GUI does get certified, the owner will have all the usual range of remedies available to stop an infringer including:
- an injunction stopping the ongoing infringing use of a GUI; and
- compensatory, damages or alternatively an account of profits received by the infringer on its exploitation of the infringing design; and
- additional damages – a court can award additional damages well over and above compensatory damages depending on the flagrancy of the infringement.
GUIs are an important part of modern technology. They deserve protection. Philosophically there is really nothing stopping them from being certified and then enforced just like any other design.
GUIs are important not just for software, but for the whole product a developer wants to sell into the market. A good GUI is a vital part of generating profits for the device or program.
If you’ve developed a GUI then at least register it before putting it into the market.
This article was written by Ken Philp, Consultant – IP and Litigation and Cecilia Chau, Lawyer – Commercial.