Friday, November 02, 2012

In Effect Throughout the European Union: Samsung Galaxy Tab Does Not Infringe Apple Registered Design On Rectangle With Rounded Corners: High Court of England and Wales Orders Apple to Post Text On Its Website to Make That Clear

For more than a year, we have been posting at LawPundit about the absurdity of the court injunctions issued against Samsung Galaxy Tab products in favor of Apple, and we can now report to have -- again -- been juridically right all along.

This posting discusses a court-ordered notice required of Apple by the High Court of Justice of England and Wales, with the image of the newspaper version of the notice linked from The Next Web:


As can be read above, the Apple company was ordered by the High Court of Justice of England and Wales to post a statement on its website that the High Court had found that Samsung's Galaxy Tab 10.1, Tab 8.9 and Tab 7.7 do not infringe Apple's EU registered design No. 0000181607-0001 on a rectangle with rounded corners.

See the judgment, which is applicable throughout the entire European Union.

Apple, apparently thinking it is above the law, did not leave it at that in its court-ordered website posting but added extraneous text alleging Samsung infringements of Apple products in other countries -- inclusion of which was clearly improper, since the court decision in question ONLY involved the question of whether Samsung's Galaxy Tab infringed upon the EU design registered by Apple, which the Court in the judgment written by Sir Robin Jacob found it clearly DID NOT (we excerpt the judgment):
  1. "So this case is all about, and only about, Apple's registered design and the Samsung products. The registered design is not the same as the design of the iPad. It is quite a lot different....

  2. Other disputes between the parties in other countries have concerned other intellectual property rights. We are not concerned with any of them....
The Netherlands
On June 27th 2011 Apple applied for a preliminary injunction in respect of all three Samsung tablets. It was refused at first instance and on appeal. Apple has an outstanding petition to the Supreme Court on a point of law. On 8th September 2011 Samsung issued a claim for a declaration of non-infringement which is on-going.
Samsung issued a claim for a declaration of non-infringement on 8th September 2011. The claim is ongoing. Apple are challenging jurisdiction. How far that can get is perhaps questionable given that before it did so it entered a defence on the merits. It may well be that the proceedings have now been overtaken by events in that there is a European-wide declaration of non-infringement granted by HHJ Birss and upheld by this judgment. No preliminary injunction has been sought in Spain and none is in force. [emphasis added by LawPundit]
On 4th August 2011 Apple applied ex parte for a preliminary injunction in relation to the 10.1. It was granted without Samsung having an opportunity of being heard. Moreover it was granted on a pan-European basis. The defendants were SEC ["SEC"=Samsung Electronics Co. Ltd] and its local German subsidiary. Subsequently the injunction was restricted to Germany as regards SEC. [bracketed material added by LawPundit]
On 24th October 2011 the Landgericht Düsseldorf granted a pan-European injunction (excluding Germany) which included the 7.7 but not the 10.1 against SEC's German subsidiary but refused such an injunction as against SEC in respect of the 7.7. Apple appealed the decision to refuse pan-European relief against SEC.
The registered design injunctions in respect of the 10.1 and 8.9 were set aside on appeal in January 2012.... [emphasis added by LawPundit]
In the Californian proceedings where a number of patents (both design and invention software patents) were in issue, we were told the jury held that Samsung's products did not infringe the design patent corresponding to the registered design we are considering ("design patent" is the US terminology for what in Europe is called a "registered design"). The laws as to infringement differ somewhat.

6. The upshot of all this is that there is now no injunction anywhere based on the registered design or its equivalent....[emphasis added by LawPundit]
The High Court has now given Apple 48 hours to put up proper text and take down the improper text it previously posted. Apple has alleged that putting up new text in that time period could not be done:
"Apple was required to alter and change the positioning of its statement from a small linked page, to an apology on the front page of its website, which needs to be printed in 11-pt Arial font."
See Tech Crunch and Apple Removes "Incorrect" Legal Statement From U.K. Website Following Court Order In iPad Vs. Galaxy Tab Case.

As Natasha Lomas writes there:
"... Sir Robin Jacob ... is reported to have added: "I would like to see the head of Apple make an affidavit about why [compliance with the order] is such a technical difficulty for the Apple company." " [text in brackets added by LawPundit]
NO ONE is above the law. Also not the monopolist Apple.

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