What Apple v. Samsung can teach us about
design
-Swapna Sundar, IP Dome
On 9thJuly 2012, the UK High
Court of Justice Chancery Division patents Court decided in favour of Samsung
in an action where Samsung sought a declaration that the three of its galaxy
tablet computers do not infringe Apple's community design registration for the
IPad. His Honour Judge Birss QC decided the case in favour of Samsung.
Community Design practice in Europe has interesting concepts that help to clarify the subject of
industrial design for designers in the fledgling Design IP regime of India.
Concept
of Informed User:Designs are to be assessed from
the perspective of the informed user. He
is a user of the product which the design is intended to be incorporated. He is
not the designer, technical expert, Manufacturer or seller. However, unlike the
average consumer of the trademark law, he's particularly observant. He (or she)
has knowledge of the design corpus and of the design features normally included
in the design of existing in the sector concerned. He is also interested in the
products concerned and uses a relatively high degree of attention when he
chooses them. The informed user also conducts a direct comparison of the design
in issue unless there are specific circumstances of the device has the
characteristics which make it impossible or impractical or uncommon to do so.
The informed user neither
(A) merely perceives the designs as a whole
and not analyse the details
(B) observes in
detail minimal differences may exist
The informed
user in this case will consider the product side by side, whether they are sold
to the public shops and websites.
Exclusion of Function: Design
registration law in general, excludes from protection features of appearance
that are dictated solely by function.The "multiplicity of forms"
theory states that, design is not dictated solely by function if it can be
shown that the same technical function can be achieved by another design.
Overall
Impression that the design produces on the informed user:The test of "different overall impression" is wider than
protection against identical or nearly identical products. While Samsung
claimed that the overall impression created by the Samsung Galaxy Tablets were
on the informed user from those created by Apple iPad understanding the design
in its proper context, Apple claimed that the overall impression produced on
the informed user by Samsung tablet is not different from the one produced by
the register design of Apple. Apple contended that the design must be
understood properly bearing in mind the existing design corpus and the degree
of freedom of the designer
Existing Design Corpus:
Design corpus is determined taking into consideration the nature of the product
to which the design is applied, the industrial sector to which it belongs on
the degree of freedom of the designer in developing the design. Although in
design law, it is necessary for the applicant to indicate the products in which
the design is intended to be incorporated, the indication cannot be used to
limit the prior art designs that make up the design corpus.
The design, to
be registrable should be different from the designs in the existing design
corpus. When the design is based on a new technology which brings new design
constraints, then the designs (based on old technology) may have little
relevance in deciding on novelty or originality of the new design. The Judge in
this case felt that consumers of the new technology would be significantly
impressed by the new designs that the technology enables.
Degree
of Freedom of the Designer:Design freedom may be constrained
by (i) the technical function of the product or an element thereof, (ii) the
need to incorporate features common to such products and/or (iii) economic
considerations (for instance, the need for the item to be inexpensive).
Context
of the Design:Apple’s iPads are not concrete
examples of the Design that they filed in 2004. Often in manufacturing,
fidelity to the filed designs is sacrificed to acquire manufacturability and
scalability.
Elements
of Apple design: simplicity; unadorned and tile
shaped. The large faces are blank with a screen on one side and back completely
blank. Corners are rounded; there is a rim around the whole edge. The article
is quite thin. The edge forms a right angle to the front face with a curve to
the back face. The dotted lines in the Apple design registration do not
indicate design element.
Elements
of (the three) Samsung galaxy tablet design:very
slim tile shaped articles; the front face is quite blank; corners are rounded;
a rim around the edge and a border around the screen; the edges of the article
are curved so that the bulge outwards. The sides have buttons on the back
surfaces of the Samsung tablets differ from each other. Apart from the backs,
the key differences between the galaxy tabs are size. The aspect ratios of the
tablets are broadly the same and all three are about the same thickness.
Similarities
between the designs of Apple and Samsung tablets:
1.
a rectangular, biaxially
symmetrical slab of four evenly, slightly rounded corners
2.
a flat transparent surface
without any ornamentation covering the entire front face of the device up to
the rim
3.
a very thin rim of constant
with, surrounding and flush with the front transparent surface
4.
a rectangular display screen
surrounded by a plain border of generally constant width centred beneath the
transparent surface
5.
a substantially flat rear
surface which curves upwards at the site and come to make the front surface of
the crisp outer edge
6.
a thin profile, the impression
of which is emphasised by item 5 above
7.
overall, design of extreme
simplicity without features which specify orientation
In order to make a decision in this case,
the Judge decided on the following formula:
(1) The
exercise will start with identifying the informed user and existing design
corpus. The overall impression is something produced on informed user.
(2) The
design must be broken down into features. Each feature needs to be considered
in order to give it an appropriate significance of weight in three respects –
determination by function, difference from the design corpus, and point of view
of design freedom.
(3) The
differences from the registered design and the allegedly infringing design need
to be addressed and weighted. The waiting exercises concerned with assessing
the significance of the similarity to the informed user.
(4) The
court can decide whether the alleged infringement produces a different overall
impression on the informed user from the produced by the registered design.
Final take-aways from the judgement:
·
Things which look the same
because they do the same thing are not examples of infringement of design
right.
·
The goal of design protection
is to reward and encourage good product design by protecting the skill,
creativity and labour of product designers. Design is concerned with both form
and function however, design law is not seeking to reward advances and function.
That is the sphere of patents.
·
Function imposes constraints on
the design is freedom which do not apply to an artist.
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