Apple, Inc. is not happy that nearly every tech company is releasing a smartphone. In a desperate attempt to monopolize as much of the market as possible, Steve Job’s co. has initiated proceedings against HTC, for alleged patent infringement, and Motorola, for alleged intellectual property transgressions. The latest target is Korean tech giant, Samsung. Apple’s attorneys are trying to throw the law book (and shelf) at the Asia-based manufacturer for various trademark, copyright and trade dress infringements.
Apple Aggressively Accuses Samsung of Copying
Steve Job’s discord (or perhaps desperation) was evident in Apple’s opening Samsung salvo. It went like this:
“Instead of pursuing independent product development, Samsung has chosen to slavishly copy Apple’s innovative technology, distinctive user interfaces and elegant distinctive product and packaging design, in violation of Apple’s valuable intellectual property rights.”
Slavishly!? Thems fightin’ words. And rather ballsy considering Apple depends on several of Samsung’s products to make their MacBook Pros, iPhone, iPad Touch, Apple TV and iPod products. Tech historians will tell you that Apple’s stance is a tad hypocritical, considering the company unabashedly “borrowed” Team Xerox’s “mouse” idea and technology not so long ago.
Apple’s MO: Secure Lots of Patents
But all’s fair in love and technology, right? Steve Jobs undoubtedly thinks so, and that’s why Apple patents the $#!& out of their $#!&. It’s also why Samsung may not emerge victorious. After all, Apple holds the patent for a rectangular, round-cornered, silver-edged, black-faced mobile device that displays sixteen colorful icons. Advantage, Apple.
That being said, @guamguy, after reviewing the lawsuit, reminded the twit-o-sphere of LG’s Prada phone, which was released one month before the iPhone. The LG Prada was rounded and had a uniform black border around the display — the same aesthetic accents Apple is suing Samsung over.
Apple’s Legal Bend: Trade Dress
The Apple v. Samsung suit is a complex, Robert Langdon-sized, legal puzzle. Apple pursued many angles, but the primary claims are trade dress, copyright and patent infringement.
Traditionally, when filing a multi-count claim, the strongest argument is listed first. In this case, Trade dress landed in the #1 slot.
U.S. Trade dress protections are outlined in the 1946 Lanham Act. While the law is complicated, the gist is this: in the United States, you can’t blatantly mimic the packaging of a competitor’s product or service with the goal of duping consumers into believing that your brand is another brand. In the case of Apple vs. Samsung, Apple is claiming that several mobile phones in Samsung’s line look so similar to iPhones that people are bound to be confused and buy an Android-based device instead of an Apple one.
Potential Holes in Apple’s Argument
At face value, Apple’s trade dress claims are straightforward and for the most part fair. But there are a few red flags. To name a couple:
- For starters, all of Samsung’s phones have the company named emblazoned across the top. A judge may decide its presence negates confusion. And that’s what trade dress is all about: protecting the consumer from being duped into making an errant purchase.
- In their eagerness to shut Samsung down, Apple included seven phone models in their claim; which is fine, except that only one model, the Vibrant, is strikingly similar.
What Samsung’s Lawyers Need to Convincingly Argue
Apple has had trade dress litigation success in the past, so it will be up to Samsung’s solicitors to convince the court that consumers do not think they’re buying an iPhone when they buy a Samsung. According to the law, Apple’s attorneys will have to satisfy two main qualifiers: functionality and distinctiveness.
If the design or packaging in question serves a functional purpose, trade dress cannot be claimed. If Samsung can somehow, someway prove their phones’ designs improve signal reception or are more ergonomic — and therefore serve a utilitarian purpose — they may just get some of the trade dress counts dismissed.
As we’ve established, trade dress is first and foremost a consumer protection measure. It protects us from buying widget B when we really meant to buy widget A. Therefore, a plaintiff must demonstrate that their product, service or brand is entwined in the cultural milieu to a point where its “look and feel” immediately evokes an association in the mind of the average consumer. This concept is called “secondary meaning,” and it must be met in order to win a trade dress lawsuit.
Samsung Says Apple Is The One To Blame
Samsung is not taking Apple’s lawsuit lying down and has initiated a counter suit claiming that Apple is the party guilty of various patent violations. There’s a good chance the Apple-Samsung saga will continue for years. And the outcome may set new technological trade dress legal precedence.
Do You Have A “Look and Feel” Intellectual Property Problem?
If you have a website or affiliate marketing program and feel a competitor has copied your “look and feel” to the point of customer confusion, there’s a chance you could be protected under trade dress regulations. An attorney well-versed in Internet law will be able to help you sort through the issue. There are also instances when trade dress is used as a bullying tactic; if that happens, hire a lawyer who can help defend your rights.
If you feel someone is impinging on your original work or brand, contact Kelly / Warner Law. We’ve assisted hundreds of people successfully resolve various copyright, trademark and trade dress lawsuits. It doesn’t cost a fortune for small and mid-sized companies to protect their intellectual property.