28 August 2012

Samsung v Apple - the Aftermath

Following its victory in California, Apple's shares rose by 1.88% while Samsung's fell by 7% even in Korea where Samsung won a partial victory (see "Apple seeks to ban sale of eight Samsung phones in US" BBC 27 Aug 2012). It was perhaps in anticipation of this reaction that Samsung applied for an injunction to restrain Apple
"from representing to any person that the making and/or offering and/or putting on the market and/or importing and/or exporting and/or using the Claimant's Galaxy Tab 10.1 and Galaxy Tab 8.9 and Galaxy Tab 7.7 tablet computers and/or stocking the Claimant's Galaxy Tab 10.1 and Galaxy Tab 8.9 and Galaxy Tab 7.7 tablet computers for those purposes by the Claimant in the European Union infringes Registered Community Design 000181,607-0001"
after its victory in  Samsung Electronics (UK) Ltd v Apple Inc [2012] EWHC 1882 (Pat) (9 July 2012).

Judge Birss refused to make that order in Samsung Electronics (UK) Ltd v Apple Inc (No, 2) [2012] EWHC 2049 (Pat) (18 July 2012) largely because it would restrict Apple's right to free speech:
"Mr. Hacon (Apple's counsel) described an injunction of this kind as sinister. I agree that there is a very serious question whether the court should go around granting injunctions purporting to restrain people from saying that they disagree with a judgment. As I think was attributed to Jeremy Bentham, "publicity is the soul of justice" and it is very important that the courts can be held up to public scrutiny and what happens in them can be discussed in public."
Nevertheless, the judge affirmed that he had jurisdiction to make such an order in an appropriate case.

Judge Birss did, however, order Apple to display the following notice on the home page of its UK website in a font size no smaller than Arial 14 with a hyperlink to Judge Birss's judgment of 9 July for a period of 6 months from the date of the Order:
"On 9th July 2012 the High Court of Justice of England and Wales ruled that Samsung Electronics (UK) Limited's Galaxy Tablet computers, namely the Galaxy Tab 10.1, Tab 8.9 and Tab 7.7 do not infringe Apple's registered design 000181607-0001. A copy of the full judgment of the High Court is available via the following link [insert hyperlink]."
Apple was also ordered to insert an advertisement containing the same notice in The Financial Times, The Daily Mail; The Guardian; Mobile Magazine and T3 magazine.   At paragraph [51] of his judgment, Judge Birss explained:
"In my judgment, Apple are carefully trying to say something which contains an innuendo that Samsung infringe without actually saying it. The reference to copying is exactly that. It is clear that copying plays no part in this case for Registered Community Design infringement, but to many people outside the circles of intellectual property law to say something infringes a Registered Community Design and to say someone copied your design or your product is to say the same thing."
The notice was supposed to have been inserted within 7 days of the date of the Order but I could find no trace of it when I checked Apple's website just now. That could be because the judge or Court of Appeal have agreed to vary, suspend or vacate the order pending appeal or because the parties have agreed something.  If that is the case we shall no doubt learn in time.

As ever, should anyone wish to discuss this article or the Apple litigation anywhere in the world he or she should call me on 0800 862 0055 or contact me through FacebookLinkedintwitter or Xing, or through my contact page.

See "Apple v Samsung - compare and contrast" 28 Ag 2012

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