Under Israel’s Designs Law, 5777–2017, a graphical user interface (GUI), screen display or icon can qualify for registered design protection when its appearance meets the statutory requirements of novelty and individual character. Software code itself is not registered as a design. This article examines filing requirements, representations of static and animated interfaces, examination and the scope of the resulting registration.
Criteria for Registering a Software Design in Israel
Design registration in Israel is governed by the Design Law (from 2017), which defines a design as “the appearance of a product, in whole or in part, including line design, color design, shape design, material design, and texture design.”
A product for the purposes of this section is defined in Section 1 of the Design Law as “including a system of items, packaging, graphic symbol, screen display, and excluding typeface and computer software.”
The law states that computer software itself is not protected under the Design Law, but its UI component is protected under the Design Law.
A design is eligible for registration if it is “new or original” (novelty is an ornament or pattern that has not been previously published in Israel and originality is examined in the application of existing elements in a different way). In the software field, novelty means that the design has not been previously published anywhere in the world and uniqueness means that the design is not substantially similar to existing designs. In software, novelty and uniqueness can be expressed in the user interface (UI), in graphic elements, in interactive displays, but less so in the user experience (UX).
While the Design Law focuses on physical products, software design can be seen as a virtual product. Software developers can register designs for interfaces, icons, menus, landing pages, and other visual elements that are visible to the user.
In addition, for a software design to be eligible for registration, designers must ensure that the design has not been previously published in a way that would negate its novelty. Prior publication includes any form of public disclosure, whether on the internet, in print publications, or in any other medium. The new Design Law allows for the registration of a design that has been previously published by the owner of the right before its registration, provided that the publication took place within 12 months before the date of filing the application for registration.
Design Rights and Copyright in Software Interfaces
A common question is why register a design in Israel when there is also copyright protection without the need for registration. Section 7 of the Copyright Law restricts copyright in a design that serves or is intended to serve for industrial production. The potential to register a GUI element as a design does not, by itself, eliminate copyright in every original graphic or illustration used in the interface. Section 7 of the Copyright Law states:
“7. Notwithstanding the provisions of section 4, there shall be no copyright in a design as defined in the Designs Law-2017, unless the design does not serve and is not intended to serve for industrial production; the Minister may determine the conditions under which a design shall be deemed to serve for industrial production.“
The relationship between copyright and registered design protection depends on the subject matter: the appearance of a product, a separately protected artistic work or the underlying software code.
The copyright analysis must therefore be conducted separately for each original work. Depending on its nature and the applicable exceptions, copyright may protect:
- Source code;
- Illustrations and designs incorporated into the game;
- Music incorporated into the game;
- Texts incorporated into the game.
What Can Be Registered as a Design?
Two-Dimensional Design
Two-dimensional design protection covers the aesthetic aspect of a two-dimensional design, such as a software screen display or an icon. This protection focuses on the two-dimensional representation, as opposed to the three-dimensional product to which the design may belong.
Many design authorities have rules or guidelines regarding acceptable graphic representations of graphical user interfaces. The basic principle is that the illustration or photograph must clearly show the claimed/protected portion, and also clearly describe the disclaimed portion, usually by dashed lines or by coloring or blurring. For example, in 2009, Google filed a design registration application for its home screen on the internet. The term “Google” was explicitly disclaimed, using dashed lines, which means that the design would be infringed even if someone copied the entire layout but replaced the term “Google” with another term (US D599,372 S):
British Gas Trading Ltd., a leading energy company in the United Kingdom, has registered a design for its software screen display in the United States (USD851672S1):
LESSINGER GAMING LLC, a game developer, has registered a design for its game’s screen display in the United States (US D910,688 S):
KING.COM LTD, a developer of popular mobile games, has registered a design for its game’s screen display in the United States (US D910,041 S):
Registration of a Single GUI Element
In most countries, it is permissible to register a design for a single graphical user interface (GUI) element out of multiple elements that can make up the GUI, provided that the element (usually an icon) is identified by solid lines and is located in its environment (for example, on a screen display). In other countries, individual GUI elements can be protected by displaying the elements themselves, without the need to display contextual information such as other GUI elements and the physical product. And in other countries, such as Argentina, Japan, Korea, Mexico, and Saudi Arabia, individual GUI elements cannot be protected without being attached to the physical product. In China, GUI elements can be protected by displaying not only the elements themselves but also the contextual information in solid lines (i.e., the scope of protection will also include the environmental characteristics). For example USD921695S1:
