Clash of the tablet titans
The Court of Appeal, delivering judgement on 18th October 2012, has upheld the July ruling of the High Court of Justice that three tablet computers in the Samsung Galaxy range do not infringe a Registered Community Design (RCD) owned by Apple.
Contrary to many media reports, and as Sir Robin Jacob himself states, delivering the lone opinion in the Court of Appeal, this case was not about whether Samsung copied Apple’s iPad. The case must be decided as if the iPad never existed. Although curiously, the court still appeared to be keeping one eye on ensuring that legitimate competition (to the iPad presumably) in the marketplace was not smothered. But in any case, the matter at hand was whether Samsung’s tablet products infringed the RCD owned by Apple.
Interestingly, the drawings included in the RCD, which was filed back in 2004, show a much earlier conception of the iPad with noticeably thicker sides while still retaining Apple’s familiar clean cut design. It is probable that Samsung would have faced much more of an uphill struggle had the RCD embodied more closely the Apple iPad product currently seen on the market, especially since the thicknesses of the Apple design, the Samsung devices and various pieces of prior art were discussed at considerable length in the High Court judgement.
Another noteworthy aspect of the Court of Appeal verdict is their decision to uphold the publicity order handed down in the High Court. Although Sir Jacob emphasised that the purpose of such orders are to dispel commercial uncertainty in the marketplace, and not to punish the losing party, Apple were essentially given a rap on the knuckles for not playing fair, because they played a significant role in causing that commercial uncertainty and used it to their advantage. Despite the enormous publicity that the case has attracted, thanks in part to the High Court Judge’s now infamous statement that Samsung’s tablets were “not as cool” as Apple’s design, Apple were ordered to publish on their homepage a notice publicising Samsung’s innocence.
Other than the “cool” comment, a small morsel of consolation for Apple’s ego, it would appear that Samsung have won this battle. However considering the diverging judgements which have recently appeared out of the US and Germany it would seem that the war is far from over for share of this lucrative market.
Others should take note from this case of the importance of timing when seeking design protection. It is dangerous to file too soon for an early or prototype version of a product, and risk owning a design which does not protect the actual product which reaches the market. However this must also be balanced with the need to ensure design protection is in place before the design is disclosed to the public, or before another competitor beats you to the punch.
In addition publicity orders are something that we will perhaps begin to see more of following the Enforcement Directive 2004/48/EC, and the availability of such innovative sanctions for wrongly accused infringers as well as for rights holders should be borne in mind. For a company such as Apple which prides itself on being the most innovative, a public statement of wrongs and such an interference with its website, one of its primary marketing tools, could be potentially more damaging that any fine.
IP Analyst, Ellis IP Ltd