Category Archives: Intellectual Property

Naming your start-up

Naming your start-up: tips for lasting success

Naming your start-upThe notion that the main consideration when choosing a new brand name is its availability as a .com domain is widespread. What is less well known is that you may not be free to use your chosen domain name if the name would infringe on someone else’s trademark rights.

Countless start-ups regularly trip up because they do not realise they need a legal opinion to assess whether the name is free to use. So, there is no point paying substantial sums buying domains as one early stage business owner I met did a while ago. He had paid £10,000 for a .com domain only to be challenged by the owner of a similar trademark when he began using it for his new business. The disruption and financial consequences were an irritating distraction for him. It was completely avoidable. Had he consulted a trademark lawyer before choosing a name he could have avoided this set back. However, many business owners are reluctant to pay for a professional opinion, regarding this as an unnecessary expense. Ironically, this particular business owner, then went out and bought another domain name, again without having any checks, and only turned to us to register it for him. He was lucky that this time there were no problems with the name.

As this is a topic of interest to me, I was amazed when I came across a recent blog post from the CEO and co-founder of “Skilljar” which focused purely on whether the .com was available when choosing a name. In that case the business was changing its name, and surely this is one time when you really don’t want to get it wrong. The disruption of changing names 3 times would be so distracting and wasteful for the business.

Based on her experience of not being able to purchase the .com to the name she was using – Everpath – Sandi Lin decided to abandon use of the name, Everpath (even though her company held every other domain variation, including the important .net) and set off in search of a new name for which the .com domain would be available.

Using the crowdsourcing platform, Squadhelp, she searched for available domain names, and settled on the name “Skilljar”. She was convinced the crowdsourcing site would minimise the time involved searching for a new name. Based on over 800 submissions, she was inspired to pick a new name. Using ‘skill’ and ‘master’ as roots to search for names on Sedo, a domain name auction site, for ‘Buy now’ listings she then found several names that were available to buy within a maximum price limit of $5,000. She also checked for social network availability and searched Google for similar results. So it was that “Skilljar” was born.

What she omitted to do was to check whether the name Skilljar was too similar to a trademarked name in the USA and other parts of the world.

The correct way to choose a name is to do some Google research, check that the desired domain is available, and then get a legal opinion on the name. If the results are favourable, then register a domain as well as a trademark. Trademarks are the way to stake your claim to a name. Even though it is not necessary to register a name to use it, registration gives you far better rights over a name, and puts you in a stronger position if someone else starts using the same name (which they are more likely to do if you haven’t put them on notice of your rights over the name by registering it as a trademark).

So, while Lin is advocating crowdsourcing as a quick and relatively cheap approach which took her only 8 hours and cost the comparatively modest sum of $2,195, it is important that others looking to find a new name appreciate that this expense would be completely wasted if someone else had trademark rights over the name.

As a trademark lawyer I find her decision to rebrand questionable and surprising, particularly as at no point did Lin even consider the trademark implications of her proposed name. She was willing to forfeit all brand confidence to date, and choose a new name, and did not first think to check that the new name would be available for her to use.

Whilst arguably an inconvenience to have to first find out whether someone else has trademark rights over a name, start-ups are in danger of spending thousands of pounds more on enforced rebranding, and on domain names that they are not free to use.

So, don’t just focus on a brand name’s web-friendly characteristics. Avoid a lawsuit for trade mark infringement, and make sure you are using a name you can own.

Ignorance not Bliss

Ignorance not Bliss – Avoiding liability for infringing pay-per-click advertising activity

Often, businesses treat intellectual property just as something they need to own and register, without giving enough thought to the risk of infringement. Even where the risk of infringement is considered, business owners don’t often realise that they could be liable for the actions of their contractors or employees, even if they are unaware of them.

This is increasingly a problem when it comes to social media and online marketing, and a recent dispute illustrates the risks involved. Ayesha Vardag, a prominent divorce lawyer, discovered that, unbeknownst to her, the marketing agency her firm had engaged was bidding on the name of her previous employer in order to generate enquiries through Google AdWords. Following negotiations, Vardag agreed to settle for over £40,000, as reported by The Lawyer.

European Trademark Registration

European Trademarks

European Trademark RegistrationIf you are doing business in a number of different European countries then, rather than registering your trademarks in each jurisdiction separately, you will likely apply for protection at the European level. 

This enables you, through a single application, to  secure protection in all 28 countries (and counting). 

Unless you only need protection in one or two member states, a European trademark is a far more cost effective, and straightforward solution.

However, it is not without its risks. While a trademark application in just a single country generally just faces the possibility of an objection from other brand owners in that country, a European Community Trademark can be opposed by an existing trademark owner in any one of the 28 member countries of the EU.  This would then block the entire trademark.

So, how can you minimise your risks? The key is to commission professional searches to identify potential obstacles before you commit to a mark, and file your application. You might begin by initially looking at the UK and European trademark registers, before then expanding the search to the national registers of each EU country. International searches like this can be quite expensive, and offer diminishing returns, so it is important to discuss what degree of searching is appropriate with your legal adviser. It is never possible to eliminate the risks entirely, but through appropriate searches, you can improve your chances without blowing your budget. Your attitude to risk, and the funds you are willing to commit to searching, will generally depend upon how critical your brand is to your business.

But what if you do encounter a problem? That is not necessarily the end of the road. If your European application is opposed by a business with rights in just a single member state, the first step will generally be to negotiate with them, and see if it is possible to come to an agreement allowing both businesses to coexist. Under some circumstances, it might not be possible to reach an amicable settlement, in which case the European trademark courts may resolve the dispute.  However, this can be costly for all involved.

If, ultimately, you do decide it is best to withdraw your application in that particular country, all is not lost as you are free to file national applications in those European countries from which you did not face an objection. However, there are no guarantees that those national applications would not face objections from other trademark owners.

A key issue when it comes to trademarks is what is known as the priority date. Typically, this is the date on which you file your trademark application, and the date from which your registration is effective. If you were to entirely withdraw your application following a dispute, and refile national applications, then you would receive a new priority date. However, it is possible to convert a European trademark application into a group of national applications, and retain your original priority date. An important advantage of doing so, is that your application will, broadly speaking, take precedence over others which were filed in the interim.

Still, converting a European application to national applications, or refiling directly in the relevant countries, can become very expensive as fees are payable in respect of each territory. So, where resources allow, it is best to carry out appropriate searches in advance. You can find out more about national, and international trademark registration on our dedicated website AzrightsTradeMarkRegistration.co.uk.

Entertainment_jpg

Battle of the Bands

Entertainment_jpgTrademarks can be one of the most significant of IP rights as a recent case involving the band Wishbone Ash  demonstrates.

The band was popular in the 1970s, and as often happens with bands, members came and went, so that eventually Andy Powell was the last man standing from the original group. He nurtured a new team so that the Wishbone Ash band still performs under that name. He registered the name as a European Community trademark. Then a former band member, Martin Turner set up a new band under the name calling his band Martin Turner’s Wishbone Ash. So, Andy Powell successfully applied for an injunction to stop the use of the name Wishbone Ash. Martin Turner is apparently appealing the court’s decision. The judge awarded Andy Powell more than £40,000 in costs and has ordered Martin Turner to deliver up all flyers, CD covers and other material which bears the Wishbone Ash name.

Over on Azrights trademark registration blog we recently reported the Nestle v Cadbury case which demonstrates how difficult it can be to secure trademark protection for colours. We also discussed the lessons to be learned from the Duffins trademark case about what to do during product creation in order to protect your brand.

 

Trademark Registration A Lack of Finality?

Trademark Registration – A Lack of Finality?

Trademark Registration a lack of Finality?Over half a million trademark applications are filed each year throughout Europe, and a memo of the European Commission indicates that as of March 2013 there were nearly 10 million trademarks listed in European registers. Putting it mildly, the Commission notes that “The demand for trade mark protection is high”. But if you consider the essential purpose of trademarks, a problem starts to emerge.

Are the Trademark Registers too Crowded?

At their most basic, trademarks are a way for consumers to tell the goods and services of one business apart from those of another. In principle, trade mark rights can also last indefinitely. So, if the number of trade marks registered continues to grow in this fashion, with every combination, and every permutation being snapped up, surely businesses will run out of words to use? Some people worry that it is already difficult to find a good .com domain name, but what would be the impact if you faced an uphill struggle when looking for a brand name you could use in general? What if all possible brand names were taken, what would you call your new business, or products?

Fortunately, even if the rate at which trademarks are applied for is set to increase significantly, this scenario is far from becoming a reality. First of all, just to cover all possible combinations of letters and numbers with marks only as long as the word ADIDAS would mean every single human being on the planet registering at least 10 trade marks, and that doesn’t take into account stylised text, logos, sounds, colours, shapes or other types of trademark. Of course, the scope of protection extends further than basic identity – the use of a similar word can constitute infringement of a registered trademark, so not every combination of characters need be registered before it becomes difficult to conceive something novel. However, this becomes even less of a problem once you account for the fact that the same trademark can be registered by different owners who are not competitors, but even so, the cluttering of the trademark registers is undoubtedly a valid concern.

Trademark Revocation

That’s why the role of trademark revocation is important. Trademark registrations are not immortal, and although it’s feasible to maintain them indefinitely provided that renewal fees are paid promptly, there are a number of grounds on which a registration might be challenged. One of the fundamental grounds on which you might apply for revocation of a registered trademark is that it isn’t being used.  Richard Arnold QC put it like this:

“The purpose of revocation is to remove trade marks or parts of the specifications of trade marks where there has not been use. It is there to serve a purpose in trade; it is the Lipitor that stops the arteries of commerce being blocked with the cholesterol of unused trade marks”

Broadly speaking, if a trademark is left languishing for a continuous period of 5 years, it is vulnerable to revocation. So, out with the old (owner) and in with the new. But this is far from the only reason a trademark might be struck from the registers.

As discussed above, the purpose of a trade mark is to help consumers distinguish the goods and services of one undertaking from those of another, and once a word becomes the common name for something, it can lose this ability to designate origin. This process is referred to by trade mark professionals as genericide – once a trade mark becomes generic it loses its distinctive character. Some common examples of genericide are Hoover and Escalator – both of which are brand names which have become accepted into general language. Once this happens, trademark registrations are on shaky ground.

Although far less common, another basis for revocation of a registered trademark is the argument that it is likely to mislead the public, for example if the trademark suggests that products have a particular geographical origin, or a particular quality when in fact they do not.

Invalidation

Aside from revocation, registrations can also be declared invalid. Whereas the impact of revocation is that the mark is removed from the registers, if a trademark is declared invalid it is treated as never having been registered at all. Trademark applications occasionally slip through the net, and so a registration might be invalidated if later on, it is discovered that a similar or identical trademark was already registered by someone else, or because another business had built up rights in a conflicting trademark by using it. Alternatively, having been reassessed the trademark could be deemed descriptive in retrospect, and therefore lacking the ability to distinguish the origin of goods and service.

Should I still try to Register my Trademark?

So, registration is feasibly indefinite, but there are no guarantees as it suffers from a lack of finality. Does this mean it isn’t worth registering? Absolutely not. The key message here is that there is far more to registering a trademark than simply making it onto the registers. All of the risks mentioned above can be managed by taking care at the outset. By casting a critical eye over your trademark before applying for registration, an expert will be able to assess whether it might later be deemed descriptive, or deceptive, and a professional search will reduce the chances of conflicting rights turning up out of the blue later on. They will also be able to advise you of ways to maintain your registration, for example by using the registered trademark symbol you may be able to avoid genericide, alerting people to the fact that the mark isn’t simply a common word but an indication that you are the source of the product.

To help avoid losing your rights you should also take care to make genuine use of your trademark. The concept of genuine use is complex, and you might be surprised by some of the situations which don’t meet this test. For example, a manufacturer promoted its clothes by giving away drinks labelled with its brand, and because the freebies were not distributed with the aim of penetrating the drinks market, it was not sufficient to maintain rights over the brand in that class of goods. On a related note, it’s important that you take care to use the mark in the way it is registered, and if you do make a change, for example by altering the design of your logo, you should consider whether it’s necessary to file a fresh application for the variation.

SkyDrive

SkyDrive Set for a Skydive? – Cloud computing service faces dispute over similar trademark

SkyDriveA recent decision of the High Court provides a useful illustration of the breadth of the rights granted by trademark registration. In that ruling the use of SKYDRIVE by Microsoft for its cloud storage solutions, was found to infringe the trade mark SKY, used in connection with, among other things, broadband internet. For context it is worthwhile getting a better picture of the rights you receive in exchange for successfully registering a trademark.

When you register a brand name as a trademark, you might assume that the law will simply prevent others from using that name in their business. However, the position is somewhat more complex, and the protection you receive is in a sense both broader and narrower than that.

Regular readers of our blog are likely already aware that when registering a trademark, that registration is restricted to certain specified goods and services. For example, you might register YOURBRAND for use with clothing and accessories. While this limits the exclusivity of your rights to a certain extent, such that another business might be entitled to sell cars, or make a TV show called YOURBRAND, you may still be able to take action if another business uses the same brand with goods or services which are similar to your own. But what if the name they use isn’t exactly the same, just similar?

In fact, there are a number of situations when you might be able to take action upon discovering your registered trademark, or a similar trademark, being used without your permission. This is because the law looks in detail at whether the marks are in fact identical, or just similar, and whether they are intended to be used in connection with identical or similar goods or services.

Even if someone uses just a similar brand, with similar goods or services, you can nonetheless take action if you can show that the public is likely to be confused. If your trademark has a reputation and a similar or identical mark has been used without permission in a way which takes unfair advantage of, or is detrimental to, the reputation or distinctive character of your mark, that may also constitute infringement.

So, the strongest case arises when an identical trademark is used for identical goods or services, but neither of these elements are essential.

Returning to the recent dispute over use of SKYDRIVE on the basis of the registered trademark SKY, the court found that although the two trademarks were not identical, there was sufficient similarity between the two marks, and between the goods and services for which they were used, that a claim for infringement should succeed.

The court also found that there was infringement on the basis that Sky’s reputation in the UK is strong, that use of SKYDRIVE would reduce the distinctiveness of the SKY brand, and that Microsoft was not compelled, or otherwise had due cause to use that particular wording.

There are a vast range of factors which influence such a decision, for example in this case the fact that the word “Drive” is arguably descriptive of the service Microsoft provides, that the core goods and services provided by each business were complementary, and that third parties have created apps based on SkyDrive, such as SkyWallet, all supported the court’s judgment.

Serious repercussions can arise from unjustified claims so, given the wide range of factors that are relevant when assessing whether trademark infringement has taken place, it is important to seek specialist advice before taking action yourself.

Microsoft have said that they will appeal the decision, so the dispute is far from over, and it will be interesting to see if the company chooses to continue using the brand name despite this ruling, in the hope that they are ultimately successful.

Intellectual Property & Change Management

Intellectual Property Rights and Change Management

Intellectual Property & Change ManagementIn any business there will be rules that management and staff need to follow. Some will be more important than others. For example, to safeguard a company’s intellectual property rights, there are a couple of useful procedures that business might introduce. IP issues arise day to day so it’s important to manage them.

If a business outsources work or collaborates on projects with others it would do well to put systems in place so as to ensure valuable IP is not lost. IP generally needs to be considered very early on.

Consider the inventor of the Karaoke machine. He earned nothing from the billion dollar industry he spawned because he didn’t realise he could take steps to protect his invention so as to reap the benefits if it succeeded. Specifically he could have patented his invention. However, it’s not just patents that can have a far reaching impact. There are other crucial IP rights like copyright which can be lost if you fail to take the right steps early on in a project.

In practice a simple rule requiring particular documents to be used before a company agrees certain terms with a third party makes the difference between protecting your brand or other IP and losing potentially valuable assets. But is that the end of it or is it likely that sometimes your best laid plans will be ignored for one reason or another?

On 13 August Shireen Smith, founder of Azrights Solicitors, an intellectual property law firm, and author of the best selling book, Legally Branded, will be running a webinar to discuss this as part of a new series of webinars looking at law in its ‘real life’ business context. Shireen will be joined by Suzanne Hazelton, author of two books, Raise Your Game, and Great Days at Work. Suzanne is an expert in getting the best from people and processes. She describes herself as a peopleologist as she works with the people in a business from a behavioural perspective. She previously worked on projects such as software beta programmes within IBM, and so has a good understanding of why it is so important to have legal controls in place. At the same time her background gives her a unique insight into the frustrations legal controls can give rise to for people within an organization, and so is ideally placed to advise companies, on how to successfully manage change. During the webinar Suzanne will focus on what a company would want to do in practice, to ensure procedures are observed by staff, particularly in a fast moving, possibly multi-national environment.

The webinar will be relevant to companies, whether based in the UK or elsewhere, as the legal controls being discussed are likely to be universally applicable in most common law jurisdictions, such as the USA, and Australia to name a few. The emphasis will be less on the law, and more on the need for procedures to protect IP. So, the webinar will be relevant regardless of jurisdiction, for any business owner, or corporate in-house lawyer looking for insights into why procedures may be necessary to preserve IP, and what pitfalls they might encounter. It will give you strategies to overcome the challenges ahead.

IPKat 10th Birthday

10 Years of the IPKat!

IPKat 10th BirthdayIt was a pleasure to celebrate the 10th birthday of the IPKat yesterday with blogmeister Jeremy Phillips and friends, and having had a thoroughly enjoyable time I wanted to say a few words personally about the value Jeremy has brought to the IP community.

Managing and contributing to the IPKat, one of the most renowned, freely accessible resources of information for intellectual property enthusiasts and professionals, whilst balancing numerous other commitments like moderating and contributing to about 10 leading blogs on IP law, also set up by Jeremy, is a task Prof. Phillips does day in day out with flair and enthusiasm.

Jeremy’s innovative approach of using the internet to reach out to a wider audience beyond academics and practitioners is certainly worthy of recognition. Prior to the arrival of the internet, access to information on legal subjects would be provided in printed form. These publications would be housed in university libraries or practitioners would subscribe to the specialist magazines or journals. It was a very niche and specialist world, with considerable barriers to entry. Having set up the first trademark blog in the UK, Prof. Phillips was a pioneer of the use of blogging as a platform to promote the free and rapid exchange of ideas on IP and to entice the interested public to engage and read about IP issues which affect them.

Arguably Jeremy’s greatest contribution, is his peerless ability to build IP communities through writing, networking, and the events he organises, and his approach is always inclusive. His work has encouraged open international dialogue and cooperation, developed relationships between practitioners, and inspired among many an inquisitive attitude towards intellectual property that can only have a positive impact upon the way in which intangible rights benefit our society.

Jeremy’s degree of dedication to people is outstanding, as a teacher he regularly assists students in finding jobs within their chosen field, is constantly writing references for them, and has a knack of spotting and nurturing talent.  He regularly organises free seminars and events, and while developing an engaging community where there would have been none before, Jeremy also still finds the time to give individualised responses to all those who write to him or comment on his network of blogs.  Overall, it’s not an exaggeration to say that no other individual has shown this level of commitment to the IP community, and I’m looking forward to what Jeremy and the IPKat have in store for the next 10 years!

This post was co-authored by Stefano Debolini

Apple granted a trademark over physical layout of the Apple Stores

Apple granted a trademark over physical layout of the Apple Stores

Fifth Avenue Apple Store (Image courtesy of Wikimedia)

Trademarks can protect more than just a brand name or logo. Chocolate maker Cadbury successfully trademarked the shade of purple associated with the brand, while Coca-Cola famously managed to secure a trademark over its iconic Coke bottle. But, in typical ‘think different’ fashion, Apple has now gone a step further, and legitimately trademarked the physical layout of its popular retail stores.

Although not the first instance of a shop interior being granted a trademark, the news has attracted a lot of attention. The U.S Patent and Trademark Office twice rejected Apple’s efforts to trademark the store layout, before finally accepting a “distinctive design and layout” after additional documentation was submitted.

The stores are known for their sleek and uncluttered look. Apple reportedly spends an average of $10 million launching each individual store, usually located in carefully selected upmarket districts. Attention to detail is taken very seriously- the sandstone flooring is imported directly from Florence, while the late Steve Jobs even patented the minimalist glass staircases himself.

Apple’s new trademark covers the trade dress, and overall visual appearance of its stores in the United States. This encompasses elements of the store design, such as the “rectangular tables arranged in a line in the middle of the store” and “multi-tiered shelving along the rear walls”.

With so much investment to ensure the overall quality and unique identity of the Apple Stores, one can understand why Apple is so keen to prevent anyone else mimicking its stores. Competitor Microsoft recently launched its own retail store strategy, while Google has also unveiled plans to open retail stores in California. In fact, Microsoft reportedly acquired a trademark for its own stores in 2011, which covered “a retail store with four curved tabletops at the front and rear side walls and a rectangular band displaying changing video images on the walls”.

Another obvious reason behind Apple’s move is to protect itself against the cheap ‘copy-cat’ stores popping up in China. These stores are deliberately conceived to fool customers into thinking the traders are selling official Apple merchandise. Indeed, many of their customers may have never set foot in an authentic Apple store, and would be unaware they were buying false products.

While the decision clearly benefits Apple, some commentators question if it is appropriate to grant companies trademarks over the layouts of retail stores. Forbes  has criticized Apple’s ability to prevent competitors using in-store rectangular tables, and argues that in the fight against Asian rip-offs, the law of passing-off is sufficient to defeat copy-cat merchants, without resorting to trademarking physical spaces.

But while this argument is valid, proving a passing-off claim is often much harder and more expensive without an established and watertight trademark. With an army of handsomely paid corporate lawyers, Apple is leaving nothing to chance.

Many business owners and company directors are calling for legal reform, to further assist businesses to protect their carefully nurtured brands without resorting to costly litigation. However, some fear that companies would soon monopolise combinations of fairly simple features. IPKat points out, that UK law is far stricter when granting trade dress, as the test requires a mark to be “truly distinctive”.

For the Apple Store layout to acquire a trademark or trade dress in the UK, Apple would have to demonstrate the stores were so unique and distinctive that the public would easily associate the store designs with the Apple brand. Clearly, for most businesses, attempts to secure a trade dress will not be viable. And as the law currently stands, it is difficult to protect distinctive features of a shop layout without engaging the expensive litigation route.

In the high street, distinctive stores can be beneficial. Customers are able to immediately identify store branding and associate particular shopping experiences with particular stores. Therefore, as branding becomes increasingly important, the expansion of legal protection over unique in- shop experiences is likely to be sought out. But until it becomes easier to protect others from copying the interiors of a retail business, the easiest option for most business will be to rely on printing their trademarked brand names or logos on various surfaces throughout the store to act as identifiers which are protected against copying.

Copyright, emulation and software

Copyright, emulation and software – is imitation not the sincerest form of flattery?

Software is essential to everyday life, it’s how we carry out research, get our entertainment fix, communicate with each other, manage information, carry out calculations, implement business processes and unleash our creativity. But what if the software you need is out of reach? Can you roll your own version of a tool sold by someone else? This is a difficult question to answer, because even the simplest software is a bundle of different elements, each of which might be protected by a variety of intellectual property rights, such as copyright, design protection, or patents. The concept of writing programs which replicate the functionality of existing software is commonly referred to as emulation. At a high level you can think of it as making sure that if the same information is input into an emulator, then it produces the same output as the software it emulates. A recent court case sheds light on the legality of this practice in the UK. The dispute between the SAS Institute and World Programming dates back to 2009, and arose when WP decided to develop their own version of SAS’ software. While copyright protects the underlying code behind software we use, in this case WP did not have access to the source code, they simply knew what went in and what came out of the software. The WP version would accept the same instructions as the SAS version, read the same file formats, and give the same outputs, but the source code was not copied. The question arising in court was whether copyright protects the set of instructions, or language, that a piece of software will accept - it’s functionality and interface with users, rather than its internals. Why is this important? Well, consider a situation where your business becomes reliant on a particular system, for example a piece of bookkeeping software. Over the years your staff will have become familiar with it, and you might have integrated it with other aspects of your business, such as with payroll, invoicing or tax calculation software. If it becomes unavailable, perhaps because the company that sells it goes out of business, or increases their prices, then you could find yourself with two options: retrain all of your staff to use a replacement, and rewrite your payroll, invoicing and other software to work with it; or create a replacement that can slot in to fill the gap. Clearly, the best approach depends on how important this particular software is to you. If it’s only used by one member of staff, and there’s a cheap alternative which is simple to learn then resolution is easy, but if there isn’t an alternative, or if it’s embedded into your processes and procedures, then rolling your own could be a far more attractive option. However, if copyright were to protect the way you use software, i.e. the set of instructions it accepts, this wouldn’t be an option. Although there were other questions involved, this is the issue raised in the SAS v WP dispute with the potential to have far reaching implications. The judge, the Honorable Mr Justice Arnold, answered most succinctly:

  • In short, copyright in a computer program does not protect either the programming language in which it is written or its interfaces (specifically, its data file formats) or its functionality from being copied.

So, at least for the moment, you are likely to be entitled to develop or commission programs which emulate the functionality of other piece of software, provided that you do not actually copy source code or other protected works which make up the original. Please do leave a comment if you think this is likely to affect you, or if you have any comments on the issue.