The Tablet Wars

Samsung Electronics (UK) Ltd v Apple Inc [2012] EWHC 1882 (Pat)

In the tablet wars, the High Court has ruled that three designs of Samsung Galaxy tablet computers do not infringe Apple's Community Registered Design. This case illustrates the importance of properly taking into account the informed user's knowledge and experience of what the judge termed the "design corpus". However, the Dusseldorf Higher Regional Court has found in Apple's favour, has upheld an earlier decision and granted an injunction preventing further distribution of one of Samsung's tablets. The tablet designs battle is now set to continue in the US.

The claimant Samsung sought a declaration that three of its Galaxy tablet computers did not infringe Apple's Community Registered Design No 000181607-0001. Apple counterclaimed for infringement. The validity of the design registration was not at issue in the proceedings (the registration is already the subject of revocation proceedings at OHIM).

Samsung argued that its tablets did not infringe Apple's design and that the overall impression the Apple design produced on the informed user was a different one from that produced by any of the three Samsung tablets.

Apple disagreed and argued that the registered design must be understood properly bearing in mind the design corpus and the degree of freedom of the designer but contended that when that exercise is carried out, the result is that the overall impression produced on the informed user by each Samsung tablet is not a different one from that produced by the registered design.

Under Council Regulation (EC) No 6/2002 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. Overall impression depends on the existing design corpus, the nature of the product, the industrial sector and the degree of freedom of the designer.

HHJ Birss QC commenced his analysis by reminding himself that what really matters is what the court can see with its own eyes, referring to Dyson v Vax [2012] FSR 4 and Procter & Gamble v Reckitt Benckiser [2008] ECDR 3. As to the "informed user", HHJ Birss QC accepted Samsung's summary characterising the informed user ("he ..is a user of the product, ..he is particularly observant.., ..he has knowledge of the design corpus and of the design features normally included in the...