The Apple, they say, Brings the Lawsuit Today.

By Jennifer Williams

Reviewed by Anthony Arther, Esq. 

When I buy a phone or any other technology gadget, the first thing I consider is what it looks like. I accept that this may make technology geeks everywhere cringe in horror and yet will respectfully continue to make my choices as such. I do not really consider the operating system, I am definitely not noticing the box that the gadget comes in, and very rarely do I ask the salesman questions about the specs of the product. Despite my disregard for the details related to my technology, the recent flood of lawsuits pertaining to smart phones and the like does not surprise me. Technology gurus take a very strict and unwavering stance on which gadgets they will use. An informed person like this, considers the operating system, the ergonomics, and the ecosystem. When another company replicates their preferred gadget, it becomes almost a personal matter and it comes as no surprise that Apple takes a similarly personal interest in its products.

Apple recently brought a lawsuit against Samsung stating that “rather than innovate and develop its own technology and a unique Samsung style for its smart phone products and computer tablets, Samsung chose to copy Apple’s technology, user interface and innovate style in these infringing products.” See Scribd.com for full court document. Apple seeks to have Samsung stop the infringing conduct as well as pay compensation for the violation. There are several Intellectual Property claims made by Apple, which pertains to: utility patents, design patents, trademarks on several app icons, and trade dress registrations.

Trade dress is where Apple begins its claims, which refers to the visual appearance of a product. Protectable trade dress is infringed when there is a likelihood of confusion among the visual appearance of the two parties products. The standard that is used when determining the similarity between trade dress is the ordinary buyer standard, which looks to whether or not the average buyer is likely to be confused.  To determine the likelihood of confusion, several factors are considered which include: the distinctiveness of the trade dress, the intent to copy, the similarity in the product, the evidence of actual confusion, the degree of care exercised by buyers, and the area, manner and degree of concurrent use. Apple claims trade dress infringement on the iPhone and its packaging, the iPod touch, the iPad and its packaging, and several of the iOS platform icons.

Apple points out the distinctiveness of its products as well as the innovative packaging that it uses. Apple points out that there is intent by Samsung to copy as well as the similarity of the products that Samsung has created and sold with the Galaxy Tab and Galaxy S line of phones. Similarly, Apple claims that Samsung has used icons on their phones and tablets that look exactly the same as those that Apple uses.

Apple then goes on to make trademark infringement claims and to do so Apple begins by showing that it is entitled to protection by pointing out that the company has revolutionized telecommunication with the iPhone and later the iPad. Apple also shows that Samsung’s actions are likely to cause confusion among consumers by pointing out the example that “ when a Samsung Galaxy phone is used in public, there can be little doubt that it would be viewed as an Apple product based upon the design alone.” See Scribd.com for full court document.

Samsung’s response to the lawsuit came relatively quickly in the form of a countersuit. The thing that stands out the most about the countersuits is that there are lawsuits in Korea, Japan and Germany yet there is no word of a countersuit in the United States. The claim is that Apple is infringing on a total of ten patents that Samsung has. I can only speculate that this move was done as a way to shift some momentum as well as to show that Samsung is not going to just roll over because Apple is suing them. It is yet to be determined if Samsung will file a countersuit in the United States but it seems likely.

Apple seems to have many valid claims, the similarities between the two companies smart phones and tablets is striking and undeniable. I think some of the hardest claims for Samsung to get around are in reference to the similarity and almost mirror imaging of the icon images that are used. With all the options I can imagine available to Samsung for icon images, it is hard to conceive why they did not choose differently. Now, do I believe that unaware consumers like me are likely to be misled? I think the answer is yes. If I were presented with, for example, a phone from both companies with out any identifying marks, I would have a hard time distinguishing one from the other and that I suppose is Apple’s point.

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