The Court of. Appeal gave its reasons for the order that I had previously discussed in Samsung Electronics (UK) Ltd v Apple Inc (No. 3)  EWCA Civ 1430 (9 Nov 2012). I apologize for the 6 week delay between their publication and this analysis but my readers will learn very shortly that I have not exactly been idle during this time.
Samsung objected to Samsung's notice on the following grounds:
- First it argued that it was not open to Apple to break up the text ordered by the court by adding in the middle of it matter that had not been ordered.
- Secondly, it contended that even if Apple were at liberty to intersperse matter, that liberty did not extend to adding misleading matter and the interspersed matter is indeed misleading.
- Finally, Samsung said that Apple was not at liberty to add misleading material to what had been ordered so as undermine its intended effect.
The Court of Appeal accepted all Samsung's contentions.
- Firstly it did not consider it was open to Apple to add matter in the middle of the notice the Court had ordered to be published. As Sir Robin Jacob stressed at paragraph : "A notice with such matter is simply not the notice ordered."
- Secondly, Sir Robin observed" Even if that were not so, it cannot be legitimate to break up the ordered notice with false material. And the matter added was indeed false....... :Apple's statement would clearly be taken by ordinary readers and journalists to be a reference to a real Apple product, the iPad. By this statement Apple was fostering the false notion that the case was about the iPad. And that the Samsung product was "not as cool" as the iPad."
- Thirdly, the added matter was calculated to produce huge confusion:
The last contention was crucial. In Sir Robin's words:
"The false innuendo is that the UK court came to a different conclusion about copying, which is not true for the UK court did not form any view about copying. There is a further false innuendo that the UK court's decision is at odds with decisions in other countries whereas that is simply not true.
The reality is that wherever Apple has sued on this registered design or its counterpart, it has ultimately failed. It may or may not have other intellectual property rights which are infringed. Indeed the same may be true the other way round for in some countries Samsung are suing Apple. But none of that has got anything to do with the registered design asserted by Apple in Europe. Apple's additions to the ordered notice clearly muddied the water and the message obviously intended to be conveyed by it."
And that appears to have been the effect. On 26 Oct 2012 The Register posted the following story under the headline "APPLE: SCREW YOU, BRITS, everyone else says Samsung copied us". Samsung complained in particular of the following text:
"Apple has complied with a UK court order by admitting on its website that Samsung's Galaxy Tab did not rip off the patented iPad design. High Court Judge Birss had instructed Apple to publish a statement online and in print that the South Korean electronics giant had not infringed Cupertino's patent.
The statement can be found via a small link labelled "Samsung/Apple UK judgement" on Apple's UK homepage and is a mealy mouthed six-paragraph account of the litigation over Apple's registered design."
There is much more material of the same sort. Nearly all of it revealed the fundamental misconception that the UK case was about whether Samsung had copied the iPad. It was not. As Sir Robin said said in his earlier judgment "this case must be decided as if the iPad never existed". "It is not about whether Samsung copied the iPad" and "the registered design is not the same as the iPad."
The Court of Appeal ordered Apple to post a corrected notice on the home page of its website within 48 hours and awarded indemnity costs to Samsung, Explaining that part of the judgment to a worldwide audience, Sir Robin said at paragraph :
"As to the costs (lawyers' fees) to be awarded against Apple, we concluded that they should be on an indemnity basis. Such a basis (which is higher than the normal, "standard" basis) can be awarded as a mark of the court's disapproval of a party's conduct, particularly in relation to its respect for an order of the court. Apple's conduct warranted such an order."
Lord Justices Kitchen and Longmore gave concurring judgments.
The Americans have a saying: "When life gives you lemons, make lemonade." If you try to make Calvados from Apples in England you are more likely to end up with apple vinegar. If you want to discuss this case, call me on 0161 850 0080 or send me a message through my contact form. You can also follow me on Facebook, Linkedin, twitter and Xing.