In the latest legal battle between Apple and Samsung over tablet computers, Samsung won in court. However, the judge decided Apple's design was distinguished from the Samsung version because it was "cool", potentially handing a huge marketing coup to Apple.
Over recent months the two companies have been busy suing each other in various jurisdictions in respect of patent or design infringement. The source of many of these arguments has been the highly-profitable tablet computer market. In the UK High Court last week in  EWHC 1882 (Pat) His Honour Judge Colin Birss QC made the first substantive finding on the issues.
As is well known, Apple, with its iPad products, is the market leader. Samsung has been doing its utmost to get into the market and establish market share. Three versions of the Samsung Galaxy tablet (10.1, 8.9 and 7.7) were felt by Apple to be too close to its design as protected by Community registered design No. 000181607-0001. In fact neither of the current iPad models, the iPad or iPad2, is identical to the protected design.
This is the first case between the two parties that has gone all the way and involved a hearing on the substantive issue of infringement of the registered design. The question of validity, that in patent and design litigation so often goes hand-in-hand with infringement, is not considered in the present judgement largely because there are ongoing validity proceedings in respect of the registered design before OHIM.
The judgement is fairly entertaining, in as much as that is possible. It provides a good background to the law of designs in the UK and EU. The judgement contains a statement of the law and then a structured application of it to the points in question. The judge tells us who the "informed user" is and then identifies a number of individual design features of the protected Apple design. For each of these, the judge then considers (i) the degree of freedom that a designer would have had, (ii) the prevalence of the feature in the design corpus, (iii) the degree of similarity between the Samsung products and the design feature and, (iv) the importance of the feature in the overall design.
The judge, however, then cautions against relying on a purely formulaic approach such as this and includes a section in which he specifically considers the overall impression produced by the Apple design on an informed user.
He goes on to compare the overall impression made by the Samsung tablets on the overall impression produced by the Apple design on an informed user, to arrive at his conclusion that they are different and therefore that there is no infringement. In summing up his views he pays Apple a compliment despite finding against them on the merits of the case. The reason why the overall impressions are different include the fact that the Apple design is for "an understated, smooth and simple" product, that is, well, a "cool design".
Of course, being called "cool" by a trendy young designer would be a compliment to many; whilst being called "cool" by a High Court patents judge, is perhaps less so.
The press coverage the case generated also shows that Samsung could use the judge's comments to their advantage. BBC News reported: "...Apple is now officially cool, which should help their appeal with the older generations. On the other hand, Samsung can now become the renegade brand. "Not As Cool? You be the judge" could become an advertising tagline for a generation that thinks that cool itself is no longer hip...."
In any event, it seems that in the eyes of the judge, Apple lost because the design of the Samsung tablet doesn't produce the same overall impression on an informed user. Perhaps the judge thought that the design of the Samsung tablet is simply not as good as that of Apple. Apple can surely take some comfort from that. Samsung will have to live with the finding, which will exist forever in British legal history, that their product is not as cool as the iPad. However, more importantly perhaps, they are not, on the basis of this design, injuncted from selling their products throughout the EU.
Of course, during the case, the Samsung product was compared with the black and white line drawings of the Apple registered design. Any visual similarity between the colours of the displays and the presentation of icons was lost. Looking at the two products side by side, there is a significant degree of similarity. Perhaps Apple could feel aggrieved that a judge did not find that there was infringement. Indeed, the case shows the value of including in a registered design application photographs of what an actual product looks like, either as well as, or even instead of line drawings.
Apple could be left wondering what is the point of having such a property right if a product as similar as the Samsung Tablet is found not to infringe? This misses the point somewhat. The protection of a registered design is narrow and was always intended to be. The novelty of the design as compared to the prior art needs to be taken into account, and before Apple's design tablet computers which were rectangular with curved corners and flat backs were known. Clearly, Apple were not entitled to a monopoly over all tablet computers.
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