Friday, September 9, 2011

Why I May Have Been Unfair To Apple In Regards To Their Fight With Samsung

With a post title that long I'd better write more than a paragraph or two on this topic. That shouldn't be a challenge. Making those words interesting... Well, we'll see.

I've criticized Apple in the recent past for what I view as an excessive amount of litigation. I still feel they are over the top in their patent litigation but it turns out that I may agree with them in regards to at least some of their litigation against Samsung over the Galaxy tab. It turns out that part of the disagreement is over trademark issues. Specifically what is referred to as "Industrial Design Right". We covered this as part of my MBA but that was a few years back at this point and I'm not a Lawyer so hopefully I'll get the details right.

The basic idea is that you can trademark the non functional aspects of a design. So for instance while you couldn't trademark the fact that a hammer has a handle, you could trademark a particular handle design that was distinctive to your product. The basic idea is that you are not supposed to be able to prevent others from building similar devices but you are supposed to be able to prevent them from building ones that look exactly like yours. Here's a picture of the Galaxy Tab 10.1 that I found on the web. Look closely at the shape of the case at the corners and how it is rounded.

Here is a picture of the iPad 2. the angle is a bit different but you can see that there are significant similarities between the iPad 2 and the Galaxy Tab 10.1

So Apple's point essentially appears to be that Samsung has created a product that from a visual perspective looks too similar to their product. Given Apple's attention to detail we can be sure that they've filed the appropriate paperwork to register their rights to this design.

The question is, can competitors make competing products that have the same basic functionality without infringing on Apple's industrial design right? The fact that Apple isn't suing ASUS, HP or other tablet makers in regards to this matter tells me that the answer to that question is probably yes.

The design elements of an Apple product are a big part of their appeal. It's easy for me to understand why Apple would feel a need to defend themselves if they felt a competitor's product was imitating one of their designs too closely. Apple is obligated to defend those rights if they want to keep them and I don't think imitating Apple's design elements this closely can be justified as "innovation".

The basic idea of the industrial design right is that it shouldn't prevent companies other than Apple from making tablets but it should give Apple the specific right to protect the unique design elements of their tablet. Has Samsung stepped over the line? Several different courts around the world appear to think they have so the answer to that question may just be yes.
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