6 factors complicating Samsung and Apple’s design war

Prof Charles Gielen

Prof Charles Gielen

The design wars between Apple and Samsung are the stuff of legend. The two tech giants have fought battles in courtrooms across the globe, with each accusing the other of copying unique designs and infringing on valuable design rights.

The culmination of those battles saw Samsung ordered to pay US$1-billion to Apple following a lengthy trial in a California court.

On the surface much of the conflict seemed to be around rectangles with rounded corners. As Professor Charles Gielen of Groningen University in the Netherlands notes however there were a number of factors that made it a hell of a lot more complicated than that.

Gielen is globally renowned expert on intellectual property and, incidentally, has been a member of the litigation team on Samsung’s side of the design wars. Speaking at the University of Stellenbosch, he detailed some of the reasons the cases in these various courts took, and are still taking, up so much time in courts around the globe.

The stakes are high

IP laws serve to protect what a human mind creates. The idea is stimulate more creativity and ideas. But when big companies get involved it becomes about much more than that. Apple and Samsung have massive commercial interests. Together they pretty much own the global smartphone market.

These multi-million dollar tech giants are not going to roll over for a settlement like an individual would in the face of a massive multi-national company. Their legal teams were always going fight with every weapon in their arsenal.

Apple didn’t go with trademarks

When Apple went to court, it had a few weapons in its arsenal. There were patents. According to Gielen, the conflicts in the cases involving patents were not actually so interesting and a bit silly really. He points to an example where Samsung was found guilty of infringing on an Apple software patent. It took two weeks to fix and the matter was resolved.

It also used Design right, which protects the appearance of a product as long as it is new and has individual character as well as copyright, which gives the creator of an original work exclusive rights to it, usually for a limited time.

What it didn’t use was trademarks, a recognizable sign, design or expression which identifies products or services of a particular source from those of others and can include shape (as is the case with the Coca Cola bottle).

Had Apple managed to trademark some aspect of the shape of the iPad, then its cases against Samsung could have potentially been more clear-cut.

Apple’s big missed chance

Apple has registered a design right to a tablet (not the iPad). The dimensions and thickness in Apple’s original design right applications absolutely preclude from being an iPad.

That original application however could have rendered a new iPad registration invalid. Samsung could easily have turned around and said that by registering the iPad design, Apple was effectively admitting that tablets, quite a lot like the original design but with subtle changes, were actually okay.

“I think Apple over-filed,” says Gielen. When you’re a big company, you’ve got to ask yourself “Are you waiting until you have a product or just filing everything that comes out of your office?”

The nature of the law

Even if Apple had done both these things differently however, there’s no guarantee the outcomes would have changed. That’s because, as Gielen points out, the nature and language behind IP law means that it’s incredibly open to interpretation.

In one of the cases Gielen highlighted, the German high court in Düsseldorf ruled that the 7-7-inch Samsung Galaxy Tab violated design rights Apple had on the iPad, while the 10.1-inch Galaxy Tab didn’t. Bear in mind that this was at a time when the iPad Mini was still just a glint in Jony Ive’s eye.

The concept of the informed user

A good example of the complicated nature of IP law is the concept of the “informed user”. Many of the cases between Samsung and Apple were decided based on whether an informed user would be able to tell the difference between two devices.

The informed user is a hypothetical creation, a middleman between the average user and an expert in the sector. They’re the kind of person who would make direct comparisons and show a relatively high degree of attention to detail.

They would also be aware of the differences between different designs available and would know to compare features. They would, in short, pay attention to the device as whole rather than certain parts of it.

Quite what that means however depends on the presiding judge. To a court in London, Samsung’s logo was a differentiating feature. Fair enough. If you see a Samsung logo on a device you’re not going to think that Apple made it. But a court in Düsseldorf argued that the presence of a Samsung logo didn’t mean anything when it came to the device as a whole. The logo, it said, was a trademark and therefore part of a different dispute.

Prior art and designer freedom

Prior art played a large part in the headline-grabbing trial between Samsung and Apple in California. It stood a chance of swaying jurors there, particularly when Samsung used it because, as Gielen notes, “almost all the features of the iPhone can be found in the prior art for other devices”.

In a lot of instances however, he says, it doesn’t work. Prior art only applies to one on one comparisons. Common elements in prior designs do not count in court decisions such as these.

In part, this comes down to designer freedom. After all, there’s only so much you can do when you’re working within the confines of a rectangle with rounded corners, right?

Even here though, there’s massive disagreement about what influences the freedom of designers. Not so long ago, the Netherlands saw a dispute over the design a disc-shaped children’s toy found in packets of crisps go to court. Now this toy isn’t complicated. It’s a round disc, with a picture on it and it’s raised towards the centre so that when children press on it, it clicks. Sounds simple enough, but things got messy once there was more than one entry into the market.

You’d think there wouldn’t be much to fight about, but companies did. Judges were forced to make learned rulings on it. They were forced to consider how popularity and changing fashions influence design and the limits that the form imposed on the designers.

Suddenly those rectangles with rounded corners seem a lot more complicated.



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