HIS HONOUR JUDGE BIRSS QC
Samsung v Apple
produces on the informed user is a different one from that produced by any of thethree Samsung tablets.4.
Apple does not agree. It agrees that the registered design must be understoodproperly bearing in mind the existing design corpus and the degree of freedom of thedesigner but contends that when that exercise is carried out, the result is that theoverall impression produced on the informed user by each Samsung tablet is not adifferent one from that produced by the registered design.5.
No witnesses of fact were called. At the case management conference the courtdirected that the parties may each call an expert to address the issue of degree of freedom and features dictated solely by technical function. Each side did so.Samsung called Mr Itay Sherman and Apple called Mr Alan Ball. Each side cross-examined the other’s expert witness at trial. Otherwise the trial consisted of oralsubmissions. It took two days. Each side submitted that the evidence of the other’sexpert was addressed to the wrong question. I will address that issue below after Ihave considered the law.6.
This dispute is being litigated between the parties in other countries. The validitycase is before OHIM. In Germany the first instance court in Düsseldorf held that theGalaxy tablets infringed the design but on appeal the Düsseldorf Court of Appealdecided there was no infringement. However the German court did grant aninjunction on the Samsung tablets on a different basis under German unfaircompetition law. In the Netherlands Apple lost at first instance and on appeal. Boththe German and Dutch proceedings are preliminary proceedings. It was not disputedthat Apple has the right to start full infringement proceedings in those countries andthat the preliminary decisions are not binding. This action is the first substantivehearing in the Community of the issue of infringement.
The Apple design
The various images making up the Apple design are at Annex A.8.
Apple did not contend that either of its famous iPad products should be used asconcrete examples of the Apple design. Neither the original iPad nor the iPad 2 areidentical to the design. Whether either of them is or is not within the scope of protection would be a matter of debate. To use either as an example of the Appledesign would be to beg the question of the true scope of Apple’s rights.9.
Looking at the Apple design itself, what strikes the eye immediately is its simplicity.The article is unadorned and tile shaped. The large faces are blank with the screen onone side and the back completely blank. Image 0001.3 looks at the article in planview if it was sitting on a table: the corners are rounded; there is a rim around thewhole edge. The transparent surface covers the whole of the front face all the way tothe rim. An issue I have to resolve is the significance of the dotted lines visible inimages 0001.1 and 0001.3. The side views show that the article is quite thin (images0001.2, 0001.5, 0001.6, 0001.7) and also show that the edges form a right angle (90°)to the front face but a curve to the back face. Images 0001.6 and 0001.7 show socketsfor connectors. They are marked in dotted lines and no issue arises about thatmarking. This clearly indicates that the design does not include those features.