Nilay Patel at Thisismynext.com has embarked on an in depth examination of Apple’s new court action against Samsung.
Unlike the spectacularly unsuccessful war against Windows (based on copyright and ‘look and feel’), this action involves:
* patents; * design patents; and * trade dress.
The “thing that distinguishes this case from Apple’s other actions against other Android products is the trade dress component (and the piquancy of Samsung being a supplier of major components for the iPhone and the iPad).
Now, this case is not being brought in Australia but, if it were, one would wonder about the trade dress prospects given the clear Samsung branding in light of Parkdale v Puxu and its progeny such as Playcorp v Bodum. The only case where the trade dress got up in the face of clear branding is really the Jif Lemoncase, in which there was survey evidence showing an overwhelming preponderance of supermarket shoppers declaring they had bought a Jif Lemon, notwithstanding the swing tags and other clear branding.
Those cases did not, of course, involve design registrations as well (or the functional patents). And, even on trade dress, Apple’s complaint is at great pains to point out the level of detail at which resemblances can be drawn.
I guess we’ll see.