Yesterday the Court of Appeal of The Hague rendered its judgment in the Apple/Samsung case on design right issues. Apple invoked a Community Design Right (CDR) registered in 2004 for a handheld computer. Earlier, a German court had held that the Galaxy Tab 10.1 of Samsung infringed Apple's rights under that CDR. In a lengthy and well-reasoned judgment the Dutch appellate court disagreed, finding no design infringement by Samsung's Galaxy tablet.

Samsung's Galaxy 10.1 looks like this:


The 2004 CDR registered by Apple contains the following diagrams:

First, Apple unsuccessfully tried to extend the scope of protection of its CDR by claiming that the iPad and iPad2 (which were not launched until 2010 and 2011) were both  'a good actually marketed which corresponds to the design' (referring to the CJEU 's opinion in PepsiCo/Groupo Promer, case C-281/10). The iPad1 and iPad2 look like this:


The Dutch court, however, rejected that claim, finding that the iPads do not correspond with Apple's 2004 CDR. The iPads are much thinner than the design reflected in the CDR and also differ substantially from the the CDR in their length-to-width proportion. Therefore, in the court's view, only the 2004 CDR should be taken into account when assessing the alleged infringement by Samsung's Galaxy tablet.

Next, the court decided that Apple's 2004 CDR does not in itself lack individual character and is thus not invalid. Although all of the elements characterising the CDR were known from prior art, there was no single existing design that contained all such elements together. Apple's design can therefore be said to consist of a combination of various existing elements which, taken as a whole, result in a sufficiently different impression compared to the prior state of the art.

A noteworthy aspect of this decision is the court's view on the dotted lines used in the CDR. According to OHIM's examination guidelines (Paragraph 11.4), dotted lines identify elements which are not part of the view in which they are used. Likewise, the CJEU has held that dotted lines do not form part of the elements that are protected by the contested design (Sphere Time v OHMI, case T-68/10).

However, the Dutch appellate court ruled that it is obvious from prior art that screens of electronic devices showed a frame/interface at the location where the dotted lines were drawn in Apple's CDR. The informed user will therefore interpret these lines as a frame/interface, especially as the surface is transparent and as it is unclear how this frame/interface under this surface could otherwise have been drawn.

Furthermore, the court analyzed  the state of the art on the date of the application as this is of importance for the  scope of protection of the CDR. Because each of the characteristic elements of Apple's CDR were known at least twice from the state of the art in the relevant sector and the majority of these elements had even appeared in one existing design (the Ozolins patent), the informed user will not consider appearance of the CDR as very special. Consequently, the CDR has only a limited individual character and therefore a limited scope of protection.

In this respect the judgment differs from the earlier decision of the German court. However, the German court could only take into consideration two prior art designs while in the Dutch case six different prior art examples were presented to the court.

Furthermore the court held that the informed user will look not only at the design as a whole but also at the details. Therefore, differences in details must also be taken into account, as well as differences in the back and sides of the tablet (contrary to the CJEU's decision in Shenzhen Taiden v OHMI – Bosch,  case T-153/08).

Consequently, based on the limited scope of protection and the differences between Apple's CDR and the Samsung's Galaxy Tab, the court concluded that the Samsung Galaxy does not infringe Apple's CDR.

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