Following on from our article “the iPad is too cool for the Galaxy” in July’s Newswire http://info.speechlys.com/rv/ff000967498b659afc2267b51547ae1d7a0f79f9 the Court of Appeal (CA) have upheld HHJ Birss’ ruling finding that the three Samsung Galaxy models 10.1, 8.9 and 7.7 did not infringe Apple’s registered community design number: 000181607-0001 (see below)

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In its representations, Apple submitted that the informed user “noting that the [registered] design was from 2004, would know and expect that advances in technology would make thinner tablets possible; thus the informed user would give little significance to the thickness of the design as registered. However, this argument was rejected, with Sir Robin Jacob pointing out that the scope of protection is for the design “as registered, not some future, even if foreseeable, variant.”

Further Apple had contended that an important feature of their design was no ornamentation and that a key feature was “a design of extreme simplicity without features which specify orientation”. The CA therefore found HHJ Birss was right to say that a departure from no ornamentation would be taken into account by the informed user.

Turning to the publicity order, the CA stated that the purpose of the publicity order was not to punish the party concerned nor to make it grovel; the test was whether there was a need to dispel commercial uncertainty. With the conflicting media reports that Samsung had prevailed in the UK whereas in Germany Apple had the benefit of an injunction against Samsung, real commercial uncertainty had been created. Therefore, the CA held that Apple must (having created the confusion) now make the position clear – nothing short of an acknowledgement from the horse’s mouth would do.