The price of Banksy’s anonymity
What is the background to Banksy’s copyright dispute with fashion brand, Guess?
The UK Court of Appeal recently confirmed the first instance decision that Samsung’s Galaxy tablet does not infringe Apple’s rights in the EU because the Samsung design is “not as cool” as Apple’s.
Widely mis-reported as a patent case, the right in question was actually a Registered Community Design. Given the outcome it could seem that a registered design offers scant protection from competitors entering the market with ‘me-too’ products. After all, Apple, maker of a well-known line of tablet computers, cannot stop Samsung from selling its Galaxy tablets in the EU.
Is all as it first seems though?
Whilst it’s true that courts interpret registered design protection narrowly, Apple registered the Community Design it relied on in the case back in May 2004, “an aeon ago in terms of computers” according to the judge. The original iPad was launched in 2010. Unsurprisingly then, Apple’s registered design is not the same as the design of the iPad. The judge commented that it is “quite a lot different… the iPad is a lot thinner, and has noticeably different curves on its sides”.
When considering whether Samsung’s products infringed Apple’s registered design, the judge at first instance had to decide if Samsung’s designs produced a different overall impression on the informed user. His conclusion that they did was found to be correct by the Court of Appeal. The relative thinness of Samsung’s products was held to form a “significant part” of the overall impression that these designs made on the informed user.
This raises the question whether matters would have turned out differently for Apple had they registered the actual design of their “a lot thinner” iPad? Would the Galaxy tablets still have produced a different overall impression on the informed user? The Court of Appeal declined to comment.
What we can take from this, though, is that to obtain best protection you should ensure that registered designs are directed to the latest version of the product which you actually sell. Had Apple done so, the outcome might well have been different.