Tuesday, August 9, 2011

Preliminary injunction granted by German court: Apple blocks Samsung Galaxy Tab 10.1 in the entire European Union except for the Netherlands

The leading German news agency, dpa, just reported that Apple has been granted a preliminary injunction against Samsung's Android-based Galaxy Tab 10.1, barring with immediate effect all distribution of the product in the entire European Union except for the Netherlands on the grounds of an alleged infringement of Apple's iPad-related [European] Community design no. 000181607-0001. I can confirm that Apple has a separate lawsuit underway in the Netherlands as well, asserting the same Community design. This was also confirmed by a court in The Hague to Dutch website Webwereld. There are differences in competition law between Germany and the Netherlands, which is why Apple filed separate lawsuits. In Germany, Apple asserts not only an infringement of the said Community design but also cites unfair competition grounds, denouncing the Galaxy Tab as an iPad imitation.

A few hours after the dpa report, an Apple spokeswoman confirmed the injunction to Bloomberg.

Note that this preliminary injunction is all about a design-related intellectual property right, not about hardware or software patents. This is the certificate of registration of the enforced intellectual property right:

Community Design 000181607-0001

Note that this is an intellectual property right granted by an agency of the European Union. It can therefore be enforced on an EU-wide basis, while European patent law is still fragmented, requiring a different lawsuit in each country in which one seeks to enforce it. There's a European Patent Office, but it's not an EU agency. By contrast, there are EU-wide trademarks and design rights.

Under case number 14c O 194/11 (according to dpa journalist Christoph Dernbach), Apple asked the Landgericht (district court) of Düsseldorf, Germany, to order an injunction under which Samsung is threatened with fines of up to EUR 250,000 (US$ 350,000) for each violation or imprisonment of Samsung's management for up to two years in the event of continued infringement. Those are standard sanctions under German tort law for contempt of a preliminary injunction.

Preliminary injunctions in Germany take immediate effect, though an EU-wide one may require additional registrations in other countries (possibly a mere formality). There can be a near-term hearing at which the decision may be reversed, but I've also seen cases in which such injunctions were in force and effect until the end of a main proceeding, which could easily take more than a year.

[Update] I have meanwhile published Apple's complaint that led to this injunction (in German). [/Update]

Apple's motion was filed by the top-notch law firm of Freshfields Bruckhaus Deringer. The two defendants named in the complaint are SAMSUNG Electronics GmbH, which is Samsung's German subsidiary based in the town of Schwalbach, and Samsung Electronics Co., Ltd, of South Korea. The exception of the Netherlands is due to the aforementioned separate legal proceeding in that country. That exception relates only to Samsung's Korean parent company, not to the German subsidiary.

Concerning the grant of the injunction, the dpa report cites sources involved with the dispute between the two companies. The German term is "Verhandlungskreise", literally meaning "negotiating circles", but it's commonly used by German news agencies in such situations and does not necessarily mean that settlement negotiations are progressing in any particular way.

Apple also asked for a similar preliminary injunction in Australia, and Samsung has, as a result, postponed the launch of the Galaxy Tab 10.1 without committing to a new launch date in Australia.

Last year, Apple filed a lawsuit with the same German court against Nokia, asserting nine European software patents. The same set of nine patents was also asserted in a parallel lawsuit in London. Apple and Nokia settled in June. Since Apple did not ask for a preliminary injunction against Nokia, no decision was taken prior to the settlement.

Even though most of my blog posts relate to litigation in the United States, I'm actually a native and still a resident of Germany. The Düsseldorf district court has a reputation for being our equivalent of the Eastern District of Texas in terms of a strong tendency to favor the interests of right holders over those of alleged infringers. About half of all European (!) patent litigation takes place before that court. But apart from that particular court's inclinations, German intellectual property law is much stricter than U.S. intellectual property law with respect to injunctions. In the U.S., an injunction is granted only if the four-factor test is satisfied. Over here, a patent holder is always entitled to an injunction (if an infringement of a valid patent claim is proven, of course). What I just said relates to both preliminary and permanent injunctions. A preliminary injunction is granted if a plaintiff can show in a fast-track procedure that he's very likely to prevail in the main proceeding. That's similar (though not identical) in the U.S., where Apple also filed a motion for a preliminary injunction against Samsung, on which there will be a court hearing in Northern California in mid October (for now, this is still at the discovery and early pleading stage).

[Follow-up] Samsung says that it was not put on notice and heard before the court ordered the injunction. That is standard procedure in Germany. I just wrote a follow-up blog post in which I explain how such preliminary injunctions work. [/Follow-up]

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