Playground Appleology – Updated

October 25, 2012

In the infants’ school playground, John tells Janet that she smells. Janet tells teacher. The teacher tells John to apologise. John mumbles, ‘I am sorry for saying you smell’ and, as he runs away, he shouts ‘And I am really sorry that you smell. Tim and Tom think you smell toooo’

That is pretty much the Apple approach to posting the notice it was ordered to post by the High Court in {i}Samsung v Apple{/i} [2012] EWHC 2049 (Pat), following its defeat in the main proceedings on registered design infringement.

UPDATE: At a hearing on 1 November, the Court of Appeal agreed with Samsung’s contention that the original notice did not comply with the order and refused Apple’s claim that it needed 14 days to replace it, presumably they needed 14 days because they are still using a John Bull printing set instead of a computer. According to a Guardian online report, the judges reprimanded Apple over the wording of the statement and ordered it to put an altered statement on its homepage – rather than tucked away in a linked page – until 14 December. The acknowledgement put up last week, linked from the home page by a tiny link, was deemed to be “non-compliant” with the order that the court had made. The judges, Lord Justice Longmore, Lord Justice Kitchin and Sir Robin Jacob, indicated that they were not pleased with Apple’s failure to put a simpler statement on the site. For a fun account of the day’s proceedings, go to IPKat {here:}. For the Court of Appeal’s withering judgment in full, look {here:]

Here is the text that was posted via a link on the UK site:
{i}Samsung / Apple UK judgment
On 9th July 2012 the High Court of Justice of England and Wales ruled that Samsung Electronic (UK) Limited’s Galaxy Tablet Computer, namely the Galaxy Tab 10.1, Tab 8.9 and Tab 7.7 do not infringe Apple’s registered design No. 0000181607-0001. A copy of the full judgment of the High court is available on the following link
In the ruling, the judge made several important points comparing the designs of the Apple and Samsung products:
“The extreme simplicity of the Apple design is striking. Overall it has undecorated flat surfaces with a plate of glass on the front all the way out to a very thin rim and a blank back. There is a crisp edge around the rim and a combination of curves, both at the corners and the sides. The design looks like an object the informed user would want to pick up and hold. It is an understated, smooth and simple product. It is a cool design.”
“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, almost insubstantial 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.”
That Judgment has effect throughout the European Union and was upheld by the Court of Appeal on 18 October 2012. A copy of the Court of Appeal’s judgment is available on the following link There is no injunction in respect of the registered design in force anywhere in Europe.
However, in a case tried in Germany regarding the same patent, the court found that Samsung engaged in unfair competition by copying the iPad design. A U.S. jury also found Samsung guilty of infringing on Apple’s design and utility patents, awarding over one billion U.S. dollars in damages to Apple Inc. So while the U.K. court did not find Samsung guilty of infringement, other courts have recognized that in the course of creating its Galaxy tablet, Samsung willfully copied Apple’s far more popular iPad.{/i}

Following the finding in the High Court, the Court of Appeal enthusiastically {supported both the main finding and the need for a publicity order:}. Sir Robin Jacob gave Apple’s continued implication that Samsung had copied as one of the reasons that the online and newspaper notice was needed and referred to the ‘fog’ of confusion that Apple’s conduct of German litigation had given rise to. The notice did little to lift that ‘fog’, not least because it seems to muddy the distinction between patents and registered design. Moreover, it appaears to have been accepted by the Court of Appeal on 1 November (relying on press reports only) that the references in the notice on the site to litigation and rulings in other jurisdictions, especially the German ruling which the Court of Appeal was clearly irritated by, are deemed to fail to meet the requirement outlined by Sir Robin (at [83]-[84]):
{i}’I have come to the firm conclusion that such an order is necessary now. The decision of the Oberlandesgericht received much publicity. What was the ordinary consumer, or the marketing department of a potential Samsung customer to make of it? On the one hand the media said Samsung had won, on the other the media were saying that Apple had a German Europe-wide injunction. Real commercial uncertainty was thereby created. A consumer might well think “I had better not buy a Samsung – maybe it’s illegal and if I buy one it may not be supported”. A customer (and I include its legal department) might well wonder whether, if it bought Samsung’s 7.7 it might be in trouble before the German courts. Safest thing to do either way is not to buy.
Of course our decision fully understood actually lifts the fog that the cloud of litigation concerning the alleged infringement of the Apple registered design by the Samsung Galaxy 10.1, 8.9 and 7.7 tablets must have created. And doubtless the decision will be widely publicised. But media reports now, given the uncertainty created by the conflicting reports of the past, are not enough. Another lot of media reports, reporting more or less accurately that Samsung have not only finally won but been vindicated on appeal may not be enough to disperse all the fog. It is now necessary to make assurance doubly so. Apple itself must (having created the confusion) make the position clear: that it acknowledges that the court has decided that these Samsung products do not infringe its registered design. The acknowledgement must come from the horse’s mouth. Nothing short of that will be sure to do the job completely. ‘{/i}

The terms of the original Apple notice have been described as ‘cheeky’, and the references to ‘not as cool’ etc might qualify for that, even if only in the context of ‘cheeky little boy’ (or some other word beginning with b). But the overall tone might well be considered not so much cheeky as contemptuous. The Court of Appeal on 1 November clearly did not take that strict a view but were clearly not best pleased.

I was hoping that the newspaper adverts which were also ordered might have been in similar terms to the original Apple notice. In that case, it would have taken a brave newspaper to publish them. But the ruling of 1 November seems to scupper that possibility and surely Apple will be sensible now.