If you don’t have an iPhone, well, you don’t have an iPhone

By Leslie Daniel *

iPhoneThe catchy and not least bit modest tagline from Apple’s latest commercials relates closely to its latest legal battle.  Apple is suing Samsung for “slavishly” copying the “look and feel” of the iPad and iPhone 3G/3GS with its Galaxy S 4G.  Apple’s intellectual property infringement claim is as follows: “Rather than innovate and develop its own technology and a unique Samsung style for its smart phone products and computer tablets, Samsung chose to copy Apple’s technology, user interface and innovative style.”  Apple’s spokeswoman Kristin Huguet did not hold back in the company statement calling the copying “blatant” and “wrong.”

The lawsuit focuses on “Galaxy’s design features, such as the look of its screen icons” and alleges Samsung violated Apple’s patents and trademarks, including the look, product design, packaging and user interface of the iPad and iPhone.  Samsung is not going to go down without a fight, though.  A Samsung representative, Kim Titus, said Samsung “would protect its intellectual property and ‘actively’ respond to the lawsuit: ‘Samsung’s development of core technologies and strengthening our intellectual property portfolio are keys to our continued success.’”

Apple filed the lawsuit in the U.S. District Court for the Northern District of California in April seeking injunctions and damages.  Apple brought 16 claims against Samsung, including unjust enrichment, trademark infringement and 10 separate patent claims.  Additionally, Apple is asking the court to find the infringement was willful on Samsung’s part, which would increase the potential damages award.  This claim is based on the fact that previous Samsung smart phones’ icons looked different than the Galaxy’s and included a variety of shapes—not as a field of square icons with rounded corners, which is the way the iPhone and iPad icons are set up.

“The test for [design patent] infringement is simply whether, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, the accused and patented designs are substantially the same.  The resemblance must be such as to deceive the observer, inducing them to purchase one supposing it to be the other.  Apple’s lawsuit included verbiage to match this test: “When a Samsung Galaxy phone is used in public, there can be little doubt that it would be viewed as an Apple product based upon the design alone.”  At the heart of the test is whether or not a Samsung Galaxy smart phone could be mistaken for an Apple iPhone.

A potential defense to the trademark claims that could be raised by Samsung is functional necessity.  Functionality is an affirmative defense because trade dress protection may not be claimed for product features that are functional.  For a feature to be considered aesthetically functional, “aesthetic considerations must play an important role in the purchasing decisions of prospective customers,” and the particular design feature must “substantially contribute to the aesthetic appeal of a product.” Additionally, for the patent claims, the defense will probably raise the question of the validity of the patents themselves.

But is this case really about design?  Numerous articles report that the fight may actually be about Apple retaliating against Samsung as a competitor and purveyor of the Android software platform.  “When Apple calls Samsung uninventive in its user interface, it’s talking more about Android’s perceived imitation of the iPhone’s interface than whatever TouchWiz tweaks Samsung has slapped on top.”  Apple has dominated the smart phone market since it came out with the iPhone in 2007.  Recently, however, Android-capable phones, including the Samsung Galaxy, have started to cut into Apple’s dominance.  This increased competition could be the real catalyst in the lawsuit. This is at least what Edward Snyder, an analyst out of San Francisco, believes: “It’s just another arrow in [Apple’s] quiver to slow down their closest competitor.”

A further complication to the lawsuit is the business relationship between Samsung and Apple.  The two companies are not just competitors—they are partners.  Apple uses Samsung memory chips in its iPads, the very product Apple claims Samsung has copied.  Last year, Apple spent $6 billon at Samsung, second only to Sony.

This lawsuit is not a novelty.  Rather, it is the latest in a tangled web of intellectual property cases brought between mobile technology giants.  The big players—Apple, Microsoft, Nokia, HTC, and others—have been involved in cases to ensure ownership of smart phone technologies and markets.  A judgment from the court is unlikely because these types of cases usually end in settlement with “licensing going one way [and] money going the other way.”

Since the initial lawsuit filed by Apple, Samsung filed a counter-suit against Apple in California, Apple filed suit in Samsung’s home country, South Korea, and subsequently, Samsung dropped the counter-suit against Apple in California.  Samsung dropped the suit to “streamline the legal proceedings” but “will continue to defend its patent rights through a counter-claim in an earlier suit Apple filed.”  The lawsuit in California against Samsung has also been expanded to include additional Samsung products that allegedly violate Apple’s intellectual property rights, including the “Droid Charge, Infuse 4G, Nexus S 4G, Galaxy Tab 10.1, Galaxy S II, and a handful of others.”

* Leslie Daniel is a second-year law student at Wake Forest University School of Law. She is a member of the Public Interest Initiative Board and a teaching assistant for a first-year writing and research class. Leslie graduated from the University of Texas at Austin in May 2009 with degrees in Public Relations and Rhetoric & Writing.  As a born-and-raised Austinite, Leslie plans to return to Austin and work in corporate law upon graduation from Wake Forest.