We have blogged a couple of times in the last few months on the Samsung v Apple case in England in which Samsung obtained a Court order that its Galaxy tablets 10.1, 8.9 and 7.7 did not infringe Apple’s registered design for the i-Pad. Most recently, I wrote about the order which Samsung obtained from the High Court which forced Apple to publicise the decision of non-infringement on its website and in the press. As I mentioned at the end of that blog, Apple appealed this decision and as a result the order to publish was suspended pending the Court of Appeal’s ruling.
The Court of Appeal has now issued its decision in this case (a copy of the decision can be found here). Essentially it upheld the High Court’s ruling of non-infringement and importantly it also upheld the order, albeit in refined terms, on which Apple had to publicise the decision. The Court of Appeal considered the publication issue afresh because there was a considerable amount of new material which had come to light since the original decision had been issued and whilst it reached the same conclusion it did so on different grounds.
Subsequent to the initial High Court decision of non-infringement, which applied throughout Europe, Apple applied to a German court and obtained an order which prevented Samsung selling its Galaxy Tab 7.7, also effective throughout Europe. The Court of Appeal said that this caused confusion in the marketplace and customers were left uncertain whether or not they were purchasing an infringing product, and if they did, whether it would be supported. Interestingly, the Court of Appeal said that given the massive publicity of the High Court’s original finding (in which the headline that Samsung’s products were ‘not as cool’ as the Apple ones was seized upon by the media) it would not have granted the order for publication had it not been for the confusion caused by the German court’s decision. This was what made it necessary. The Court did however vary the terms of the High Court’s order and said that it would be sufficient for Apple to publish on its UK website a link entitled “Samsung/Apple UK judgment”, which led to a short notice summarising the High Court’s decision, for a period of one month. It also required Apple to advertise the decision in the press, including the Guardian and the Financial Times, in a font size of not less than Arial 14 and on a page before page 6 of those publications.
No such publication has yet been made by Apple and so the question now remains whether it will further appeal and seek suspension of the Court of Appeal’s decision to the Supreme Court. We will continue to monitor this case for further developments with eager anticipation!
On October 19, 2012