1. Samsung Electronics (UK)
Limited & Anr
v.
Apple Inc.
High Court of Justice, Chancery
Division,
[2012] EWHC 1882 (Pat)

2. Introduction-Entertainment Law?

Apple Inc. v. Samsung Electronics Co., Ltd. was the first of a series
of ongoing lawsuits between Apple Inc. and Samsung Electronics
regarding the design of smartphones and tablet computers.

Between them, the companies made more than half of smartphones
sold worldwide as of July 2012.

By August 2011, Apple and Samsung were litigating 19 ongoing
cases in nine countries; by October, the legal disputes expanded to
ten countries.

By July 2012, the two companies were still embroiled in more than
50 lawsuits around the globe, with billions of dollars in damages
claimed between them.

While Apple won a ruling in its favour in the U.S., Samsung won
rulings in South Korea and Japan.

6. Facts:

Samsung motioned a U.K. courts for a declaration that its
Galaxy tablets were not too similar to Apple's products and
Apple counterclaimed for infringement,

Samsung prevailed after British Judge Colin Birss ruled
Samsung's Galaxy tablet 10.1 was not “cool” enough to be
confused with Apple’s ipad.

In July 2012, British judge Birss ordered Apple to publish a
disclaimer on Apple's own website and in the media that
Samsung did not copy the iPad.


He gave Apple 21 days to appeal the decision.
The judge stayed the publishing order, however, until
Apple's appeal is heard in October 2012.

OIHM case pending!

7. The Law-EU Standard
COUNCIL REGULATION (EC) No 6/2002 of 12
December 2001 on Community designs.

Article 3 defines “design”.

Articles 4, 5 and 6 relate to validity, a design must be new and have
individual character.

Article 8 excludes features dictated solely by function.

Art 10 defines the scope of protection in a manner analogous to the
definition of individual character in Art 6.

A design will infringe if it does not produce on the informed user a
different overall impression.

In assessing the scope of protection, the degree of freedom of the
designer in developing his design shall be taken into
consideration.

Recital 14 explains that overall impression depends on the existing
design corpus, the nature of the product, the industrial sector and the

8. Definitions

Design Freedom: Design freedom may be constrained by (i) the
technical function of the product or an element thereof, (ii) the
need to incorporate features common to such products and/or (iii)
economic considerations

Informed User:
(i) He is a user of the product in which the design is intended to be
incorporated, not a designer, technical expert, manufacturer or
seller.
ii) However, unlike the average consumer of trade mark law, he is
particularly observant .
iii) He has knowledge of the design corpus and of the design
features normally included in the designs existing in the sector
concerned.
(iv) He is interested in the products concerned and shows a
relatively high degree of attention when he uses them.





(v) He conducts a direct comparison of the designs in issue
unless there are specific circumstances or the devices have certain
characteristics which make it impractical or uncommon to do so.

9. Infringement:
How decided?
Design Freedom:
A feature
dictated solely
by function
is to be disregarded.
Existing
Design Corpus
Must produce
a different
overall Impression
on the ‘informed
User’

10. Feature wise Differentiation
(i)
A rectangular, biaxially symmetrical slab with four
evenly, slightly rounded corners:

The rectangular display screen is totally banal and
determined solely by function .

In addition there are many designs in the design
corpus which can be described as “a rectangular,
biaxially symmetrical slab with four evenly, slightly
rounded corners”.

Hence the significance of this identity is reduced by
the fact that there are other designs in the design
corpus which are very similar too.

11. Contd:
(ii) A flat transparent surface without any
ornamentation covering the entire front face of the
device up to the rim;
As a practical matter all displays have a border feature of
some sort and to that extent design freedom is
constrained.
Similar Designs in the corpus
Samsung- very low degree of ornamentation is notable.
However a difference is the clearly visible camera hole,
speaker grille and the name Samsung on the front face.
I find that the presence of writing on the front of the tablet is
a feature which the informed user will notice (as well as
the grille and camera hole).

12. Contd:
(iii) A thin profile:

With the Advancement of technology, designers of
handheld computers are constrained to make the
products relatively thin.

It is clear that using a curve or cut-away between the
side edge and the back to enhance the appearance of
thinness is an expedient found in the design corpus. It is
not banal but it is a common technique.

To my eye the Samsung Tablet is about half the
thickness of Apple for the same length or width. This is
something the informed user will notice.

The Samsung tablets look very much thinner than the
Apple design. That is important to the informed user.

13. Difference

There are some minor differences but to my eye there
are two major differences:

The most important difference between the Samsung
Galaxy tablets and the Apple design is the thinness of
the Galaxy tablets.

To an informed user, the Galaxy tabs do not merely look
like a thin version of the Apple design, they look like a
different, thinner design of product.

The next most significant difference is the detailing on
the back of each of the tablets.

14. Ratio

As I have said the significance of the near identity of the front
surfaces of these products is reduced to a degree by the
existence of similar fronts in the design corpus.

The front view of the Apple design takes its place amongst its
kindred prior art.

There is a clear family resemblance between the front of the Apple
design and other members of that family (Flatron, Bloomberg 1 and
2, Ozolins, Showbox, Wacom). They are not identical to each other
but they form a family.

From the front both the Apple design and the Samsung tablets look
like members of the same, pre-existing family.

As a result, the significance of that similarity overall is much
reduced and the informed user’s attention to the differences at the
back and sides will be enhanced considerably.

15. Judgement

The informed user’s overall impression of each of the
Samsung Galaxy Tablets is the following.

From the front they belong to the family which includes
the Apple design: but the Samsung products are very
thin members of that family with unusual details on the
back.

They do not have the same understated and extreme
simplicity which is possessed by the Apple design.
They are not as cool. The overall impression
produced is different.

The Samsung tablets do not infringe Apple’s registered
design No. 000181607-0001.

16. Thank You
Varun Vaish (2008-74)