Friday, September 16, 2011

Translation of Düsseldorf Regional Court's detailed ruling against Samsung Galaxy Tab 10.1

Let me start with the long-awaited answer to the question of whether Samsung also raised the Stanley Kubrick (2001 - A Space Odyssey) defense for the Galaxy Tab design in Germany. The answer is YES. And they also raised the "Tomorrow People" defense, but it was equally unavailing as the Kubrick defense.

Last week, the Düsseldorf Regional Court upheld its Germany-wide preliminary injunction against the Galaxy Tab 10.1. Two days after the ruling, I also explained what Apple's victory means for the retail channel.

I have meanwhile retrieved a copy of the full text of the ruling and would like to publish my unofficial translation because I believe many non-German-speaking observers of the case may find this useful -- especially in light of the fact that a U.S. design patent that is an even broader (!) equivalent of the Community design asserted in Germany may still lead to a preliminary injunction in the United States (the hearing on that one is scheduled for October 13). There are obviously differences between the legal systems. Even a Dutch court didn't agree with Apple on this (it handed a preliminary injunction against some Samsung smartphones, but didn't find the Galaxy Tab 10.1 to infringe Apple's asserted Community design). Nevertheless it's interesting to see how judges apply the asserted design-related rights to the relevant fact pattern.

The Düsseldorf court agreed with Apple pretty much all the way, which became clear at a recent hearing and is clearly reflected by the detailed ruling.

Here's the translation -- again, it's an unofficial one provided by me, and since it's very long, I left out some detail that I considered less important:

Düsseldorf Regional Court, case no. 14c O 194/11

Date: 09/09/2011

Court: Düsseldorf Regional Court

Chamber: Civil chamber 14c

Case no.: 14c O 194/11

Wording of Decision:

The preliminary injunction of August 9, 2011 is amended and now reads as follows:


Barring a fine to be determined by the Court for every single case of contempt, amounting to a maximum of EUR 250,000 in each such case (or if the fine cannot be collected, imprisonment), or imprisonment of Defendant's corporate officers for up to six months, or up to two years in the event of repeated contempt, Defendant is prohibited from

using, in particular, making, offering (including promotions), selling into the market, importing, exporting and/or owning for any of those purposes

with respect to the market of the European Union, as far as Defendant#1 [Samsung Germany] is concerned,

and with respect to the market of the Federal Republic of Germany, as far as Defendant#2 [Samsung Korea] is concerned,

computer products characterized by

(i) an overall rectangular shape with four evenly-rounded corners,

(ii) a flat clear surface covering the front of the device that is without any ornamentation,

(iii) a rectangular delineation under the clear surface, equidistant to all edges,

(iv) a thin rim surrounding the front surface,

(v) a backside with rounded corners and edges bent toward to the top, and

(vi) a thin form factor

according to the following images:

1) [multiple images]


2) [multiple images]


Plaintiff's prayer for relief concerning an extension of the injunction pursuant to part I to Defendant#2 [Samsung Korea] beyond the territory of the Federal Republic of Germany to the territory of the European Union -- with the exception of the Netherlands -- is denied.


Plaintiff's court fees and attorneys' fees are allocated to the parties as follows: Plaintiff bears 40% of those costs, Defendant#1 [Samsung Germany] 50%, and Defendant#2 [Samsung Korea] 10%. Defendant#1 [Samsung Germany] has to bear its attorneys' fees itself. Defendant#2 [Samsung Korea] bears 20% of its attorneys' fees, with Plaintiff bearing the other 80%.


This judgment is preliminarily enforceable. If Defendant#2 [Samsung Korea] seeks to enforce this ruling [the part concerning the reimbursement of 80% of its attorneys' fees] against Plaintiff without making a bail of 120% of the relevant amount to be collected, Plaintiff will not be required to make such a bail either in order to avert collection.


Parties are very successful makers of devices in the fields of consumer electronics, telecommunications, and computers. Defendant#1 is the German subsidiary of its South Korean parent company, Defendant#2. Plaintiff is based in California and sells, among other products, a tablet PC, the first version of which was released into the market under the iPad name in the year 2010. In March 2011, Plaintiff released its successor, the iPad 2, in Germany.

As early as on May 24, 2004, Plaintiff registered with the European office for design rights -- claiming priority from a publication in the United States on March 17, 2004 -- Community design no. 000181607-0001 for a pocket computer:

[images of the relevant Community design]

Defendants intend to distribute in the German market their new tablet PC named "Galaxy Tab 10.1" as shown by the images in the Wording of Decision. Previously, Defendant#2 already released the Galaxy Tab 10.1 in the U.S. market, however, without the "Samsung" label on the front.

On July 18, 2011, CHIP magazine published a report entitled "Unwrapped: Samsung Galaxy Tab 10.1" with photos, stating that Samsung had "officially presented" the Galaxy Tab 10.1 and provided the magazine's editorial staff with a test unit (Exhibit ASt23). On the following days, additional reports on the Galaxy Tab 10.1 were published by other computer magazines, indicating that the relevant editorial staffs were provided with this product. A ZDNet article of July 29, 2011 states: "Two weeks ago, Samsung provided the first pre-production samples of the new Galaxy Tab 10.1 for review purposes. Pre-Production means that the manufacturing is starting [...]." (Exhibit ASt27). In an O2 [a major European mobile operator] shop, counsel of Plaintiff was informed that the product was gong to become available to everyone in stores starting August 11, 2011.

There is a dispute between Parties as to whether Plaintiff already had knowledge of the impending market release and design of the Galaxy Tab 10.1 prior to July 18, 2011.

In this regard, Plaintiff claims not to have known the exact design of the upcoming product prior to the publication of the aforementioned CHIP article on July 18, 2011. Plaintiff says it had been unclear whether Defendants would release into the German market the previously-released U.S. version of the product with an identical design or whether they would still modify it. Plaintiff claims to have been unsure even when filing a motion for a preliminary injunction in the Netherlands on June 27, 2011. While Plaintiff alleges that ultimately the only modification consisted in the addition of the "Samsung" label to the front of the tablet PC, Plaintiff asserts that this modification shows that the tablet PC was not meant to enter the various markets with the same design. According to Plaintiff, this is furthermore evidenced by the fact that Samsung averred in a Galaxy Tab 10.1-related litigation in Australia that a modified version of the U.S. design was intended for sale in the Australian market (Exhibit ASt44). Plaintiff says it could not conclude from the website of Defendant#1 with the necessary precision and certainty the design of the Galaxy Tab 10.1 intended for sale in Germany and Europe. Furthermore, it reiterates -- as it stated during the hearing -- that there had not been any images of the product packaging, which was however allegedly relevant to Apple's claims under unfair competition law./p>

Plaintiff is of the opinion that the Galaxy Tab 10.1 falls within the scope of protection of its legally valid Community design no. 000181607-0001 and, as a result, sees its design-related right infringed. Plaintiff furthermore brings, in the alternative, claims under unfair competition law. Plaintiff elaborated on those claims in detail in a pleading.

With respect to the question of the international jurisdictional competence of this Court concerning activities of Defendant#2 outside the territory of the Federal Republic Of Germany, Plaintiff claims that Defendant#1 is merely a distribution subsidiary of Defendant#2, conducting business in the German market as an extension of Defendant#2. Therefore, Plaintiff holds the belief that Defendant#1 should be deemed an establishment of Defendant#2 in accordance to Article 82(1) of the Community Design Regulation (hereinafter: "Regulation"). Plaintiff asserts that this Court's competence additionally follows from Article 82(2) of the Regulation as well as Article 82(1) para. 1 and Article 79(1) of the Regulation in conjunction with Article 6(1) of Council Regulation (EC) No. 44/2001 [on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters].

On August 9, 2011, this Court ordered a preliminary injunction, granting Plaintiff's motion of August 4, 2011 for a preliminary injunction, by which this Court prohibited Defendants from certain activities of using [the asserted Community design] with respect to the computer products shown in the preliminary injunction order in the European Union -- however, with respect to Defendant#2, excluding the Netherlands. The decision did not contain any detail on the characteristics [of the products]a nd for both models showed only the first of the images shown in the above Wording of Decision. With respect to such detail, this ruling refers to the decision [of August 9].

On August 10, 2011, Defendants objected to the preliminary injunction.

By way of a decision of August 16, 2011, this Court, further to a motion brought by Defendants, suspended the enforcement of the preliminary injunction to the extent that Defendant#2 had been prohibited from activities outside the territory of the Federal Republic of Germany.

Plaintiff moves

to decide as it was ordered,

whereas Section I of its motion stated characteristics (iii), (iv) and (v) as follows:

(iii) unde the clear surface, there are noticeable, neutrally-designed delineations on all sides of the display with the same proportions at the top and at the bottom

(iv) the view of a thin rim surrounding the front surface

(v) a back panel that rounds up near the edges to form the thin rim around the front surface,

and whereas Plaintiff requested to add the following additional photo to its motion:


Furthermore, Plaintiff moved to uphold the preliminary injunction with respect to Defendant#2 even in the entire European Union in connection with the activities described in Section I of the Wording of Decision.

Defendants move

to lift the preliminary injunction of August 9, 211 and to deny Plaintiff's prayers for relief.

Defendants are of the opinion that this Court does not have international jurisdcitional competence with respect to Defendant#2's activities outside of Germany.

Apart from the foregoing, Defendants claim that the motion as a whole is indefinite and, as a result, inadmissible.

Furthermore, Defendants argue that there is not [the] urgency [required for a fast-track decision under German law] since Plaintiff had allegedly known for some time that Defendants intended to offer their Galaxy Tab 10.1 in the German market. In particular, Defendants claim images [thereof] had been accessible as of May 17, 2011 on [Samsung's] German website, as shown by Exhibit rop44a. On June 6, 2011, those were -- according to Defendants -- replaced with the images that Defendants provided along with their protective pleading ["Schutzschrift"] as Exhibit rop3. Defendants aver that those had not only been the size of a postage stamp but made it easy to discern the design of the product.

Furthermore, Defendants raise the defense that the asserted Community design is invalid. On the one hand, its depiction is allegedly so contradictory as to be invalid. On the other hand, there is a previously known body of designs that allegedly stands in the way of protection by a Community design. For this prior art, Defendants refer to their invalidation request filed with the OHIM [Office for Harmonization in the Internal Market] (Exhibit rop20). In particular, they claim that the asserted Community design was anticipated by a product study named "Knight-Ridder" (Exhibitrs rop11, 12, 12a, 13, 13a, 53, and 53a) and the "HP Compaq TC 1000" (Exhibits 14, 14a, 15, 16, 16a, and 50), a claim on which -- as well as on additional prior art -- Defendants elaborate further [in their pleading].

Finally, Defendants deny infringement of the asserted Community design. The characteristics described by Plaintiff as characteristic are allegedly dictated, for the most part, by technical parameters. Against the background of the demonstrated prior art and those technical parameters, the scope of protection of the Community design is only narrow, according to Defendants. Above all, however, the overall impresion of the asserted Community design and the Galaxy Tab 10.1 are claimed to be different since the characteristic features of the Community design are claimed not to be matched by the accused shape. For example, Defendants argue that the accused design does not sport the shell-shaped Unibody design of the back panel and the narrow edges, but it allegedly consists of three parts as it consists of the surface of the frame, the frame part and a backside cover. Defendants describe as particularly characteristic the bulging frame, which allegedly extends on one side to, and lies on top of, the back panel. Finally, Defendants claim that the accused design has a different aspect ratio than the asserted Community design. Defendants aver that their product does not resemble a shell with a glass surface placed on top, but a flat panel, similar to a bread slicer.

Defendants also deny any claims under unfair competition law. In particular, Defendants argue that one can rule out any deception concerning the origin of the product or an unfair exploitation of the [iPad's] reputation.

With respect to all further detail of the representations of fact and legal arguments, Defendants refer to their filed pleadings and their exhibits.

Reasons For the Decision

Samsung's objection is unavailing as to Defendant#1 [Samsung Germany]; with respect to Defendant#2 [Samsung Korea], the preliminary injunction had to be confined to the territory of the Federal Republic of Germany and the enjoinder with respect to the Europe-wide market (except for the Netherlands) had to be lifted.


According to Article 82(1) of the Regulation, this Court is internationally competent for this litigation with respect to Defendant#1, which is domiciled in the Federal Republic of Germany. According to Article 83(1) of the Regulation, this competence extends to the entire territory of the European Union.

This Court is furthermore internationally competent with respect to this litigation against South Korea-based Defendant#2 in accordance with Article 82(5) of the Regulation, whereas competence is limited to infringements that have been committed or threaten to be committed in the Federal Republic of Germany, according to Article 83(2) of the Regulation.

A further-reaching international competence that would allow this Court to order an injunction against Defendant#2 beyond the territory of the Federal Republic of Germany with respect to the entire territory of the European Union must be denied. In this respect, the preliminary injunction of August 9, 2011 had to be lifted and the related part of the relevant motion had to be denied.

This Court is not competent under Article 82(1) of the Regulation. In this respect, Plaintiff has failed to show and credibly demonstrate to this Court that Defendant#1 is an establishment of Defendant#2 in accordance with Article 82(1) of the Regulation.

With respect to the definition of an establishment, the Court can rely on the requirements developed by the European Court of Justice in connection with Article 5(5) of the European Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (hereinafter "Brussels Convention") [literatur reference]. The relevant starting point is the definition of an establishment developed in the Somafer [references omitted] decision and also applied in the Schotte decision [references omitted], according to which this term "means a center of commercial activity, which acts an outpost of a headquarters for the long haul, has an executive management and is factually equipped so that it can conduct business with third parties in a way that those parties do not have to engage with the headquarters, even though they know that they may possibly enter into a legal relationship with the foreign-based headquarters, eliminating the need for those third parties to contact the foreign-based headquarters and enabling them to do conclude business transactions at the center of business activity that serves as an outpost of that headquarters".

In this context, the categorization of Defendant#1 as an establishment is not rendered fundamentally impossible by the the fact that it is a legally independent wholly-owned subsidiary of Defendant#2. For example, the European Court of Justice held in the Schotte decision that a legally independent company shared the name of its parent company and its executive management, acted in the name of the parent company, concluded transactions in its name, and served to the parent company as an outpost [Schotte reference]. The ECJ underscored that this determination does not hinge solely on the internal structure of the organization but deemed decisive the way in which the companies acted in commercial dealings and vis-a-vis third parties. Finally, the Düsseldorf Higher Regional Court [reference omitted] concluded that a subsidiary was an establishment in light of the aforementioned criteria when it lacked an identical management but conducted business transactions as a legally independent outpost on behalf of a legal entity domiciled in another contracting state.

Plaintiff has not been able to show that the aforementioned criteria are met in this case. It is true that Defendant#1 is a mere distribution company. It acts as a center of commercial activity and outpost of a headquarters, i.e., Defendant#2, insofar as it operates under the same name in its legal interactions and there is no clear differentiation between Defendant#1 and its parent company in their Internet presence. For example, the "Management" menu item leads to a presentation of the members of the Korean executive board, and large parts of the information provided relate to the parent company and the overall corporate group. Also, it uses in its external presentations, such as trade show booths, at least in part only the "Samsung" brand without identifying the legal entity behind such commercial activity. Notwithstanding the foregoing, Plaintiff was unable to show and credibly demonstrate that Defendant#1 acts in the name of, and concludes business transactions on behalf of, its parent company. Instead, Defendants argued that Defendant#1 concludes contracts and issues invoices only in its own name and also uses its own name in its correspondence. Against this background, Defendants argued that third parties do not give consideration to -- not even the possibility of -- entering into a legal relationship with the foreign parent company, but come from the assumption of being in exclusive contact with Defendant#1.

It is correct that the foreign parent company can -- as Plaintiff claims -- have influence, through its choice of its internal organizational structure, ove the question of whether Defendant#1 is an establishment in the relevant legal sense. However, this position ignores that in the case of a structure in which the local company acts in and appears under its own name, the legal appearance [of a separate entity] is created in the perception of others.

In the relevant sitaution,in which Defendant#1 acts in and appears under its own name, there can be no other interpretation of applicable law in consideration of its purpose. There is no colorable reason for which third parties should be allowed to sue in this country a foreign parent company. A third party can use the legally independent subsidiary as its point of contact and contractual partner. Interaction with that subsidiary does not enable access to the parent company.

There is no other interpretation in the field of competition and intellectual property law, such as in connection with Article 82 of the Regulation. A plaintiff who complains about the infringement of an industrial property right in the European Union by a non-European company is not deprived of access to Europe-wide relief from one court in an EU member state. If a plaintiff is domiciled in a member state or has an establishment in it, that plaintiff can bring an action in that particular member state. In all other events, the court at the domicile of the Office for Harmonization in the Internal Market in Alicante, Spain, has Europe-wide jurisdictional competence. Plaintiff has not substantited that it has an establishment in Germany that would enable it to bring such action according to Article 82(2) of the Regulation. This Court did not have an obligation to make Plaintiff aware of this since Plaintiff could gather from the August 16, 2011 decision that the Court had serious doubt about its international jurisdictional competence with a view to a Europe-wide injunction against Defendant#2. Plaintiff could conclude -- as it did -- that it had to make complete pleadings with respect to the jurisdictional competence issue.

This Court is furthermore not competent according to Article 79(1) of the Regulation in connection with Article 6(1) of Council Regulation no. 44/2011. Therefore, it is questionable whether international jurisdictional competence for a defendant in a non-EU country -- in this case, Defendant#2 -- can be argued on the basis of that statute. This question is controversial in the relevant literature. While some authors believe that [this] is defensible [references omitted], the wording of [the relevant aricles] clearly cannot be construed [accordingly].

Even in the event that one considers the relevant statute applicable to South Korea-based Defendant#2, Article 90 of the Regulation sets forth for preliminary injunction proceedings that a court whose competence is based solely on Article 82(5) or Article 79(1) of the Regulation in connection with Article 6 of the [Brussels Regulation] can order preliminary injunctions only with respect to the member state in which it is based, but not with an EU-wide effect. [...]

Apart from the foregoing, there are no concerns about the jurisdictional competence o this Court, and Parties have not raised related objections.


The preliminary injunction is also valid for other reasons. In particular, the related motion is sufficiently clear as to the assertion of a Community design.

The original motion, which was the basis for the preliminary injunction of August 9, 2011, showed the accused Galaxy Tab 10.1 in its two variants (dark and white back panel) with two images of each variant. At the end of the hearing, Plaintiff added -- in light of Defendants' presentation of a decision by the Düsseldorf Higher Regional Court -- pictures from other angles and statements of additional characteristics.

For the unfair competition claim -- which was brought as a fallback --, the provided list of characteristics [...] was sufficient.


Plaintiff's motion was not unspecific to the extent that the asserted Community design and the scope of the requested relief would have been insufficiently clear. [...] To the extent that Defendants criticize that shadows of colors had been incorporated into the motion, those are irrelevant light effects due to photography. [...]



There is an entitlement to preliminary injunctive relief as required [under German Civil Procedure]. Defendants had anounced the actual release of the accused products in the German market, and meanwhile the accused products have entered the German market.

Plaintiff's behavior did not show that it lacks a sense of urgency in this matter. This Court applies a slightly more flexible standard than the Düsseldorf Higher Regional Court, which assumes a statute of limitation of two months [from the moment of acquiring knowledge of an actual or impending infringement], and assumes that no particular justification is needed for taking up to four weeks {to bring a motion for a preliminary injunction]. That period can, however, also be extended to eight weeks and in exceptional cases even beyond if the circumstances of the case suggest that there is a valid reason, such as a neeed for further investigation of the matter, a cease-and-desist order, settlement talks, cross-border correspondence with the help of translators, or extensive research.


In this case, the period of urgency had not ended before the filing of the motion on August 4, 2011. [It only began with the CHIP article of July 18, 2011.]




Plaintiff is entitled to injunctive relief against Defendants according to Article 19(1) and Article 89(1)(a) of the Regulation.


Plaintiff is owner of the [asserted Community design], the validity of which must be presumed by this Court.

Defendants' invalidity contention [...] is unavailing.


The asserted Community Design is not invalid due to contradictory depictions of the design. [...]



The asserted Community design is not invalid due to a previously-known body of designs.

The validity of the asserted Community design is, according to Article 4(1) of the Regulation, contingent upon its novelty [at the time of registration] and its distinctiveness. [...]


None of the characteristics is merely dictated by technical parameters. [...] [reference to other -- unnamed -- products in the market that have different shapes and ornamentations]

In particular, the design of the front is not merely dictated by technical needs. Defendants and the Dutch court, the Rechtbank 's-Gravenhage (in its Dutch proceeding concerning the Galaxy Tab 10.1), correctly point out that a "glass-like" touch panel covering the entire front side appears to be a logical choice [reference to German translation of Dutch decision]. This is also holds true for the rounded corners. Contrary to the Dutch court, this Court also considers the omission of frills and the minimization of elements to be a design achievement, since such minimization is not called for by technical reasons. A broader, easy-to-grip edge of the case -- possibly also on the shorter sides or on only one side --, a lower-lying display as frequently seen on conventional PC screens, an inner frame with edges of different breadth (as far as one elects to take this element into consideration, as this Court does) or a stronger rounding of the concerns are examples of changes to the front side that need not be technically disadvantageous.

The possibilities of a design of the edge of the device that differs from the asserted Community design but equally fulfills its technical function is shown by the competing tablet PCs presented by Plaintiff (Exhibit ASt18). For example, Toshiba's Folio 100 tablet PC has an inner display frame, a surrounding case frame and additionally a surrounding silver ornamental molding, which might reduce the susceptibility of the device to impact. Acer's Iconia Tab sports a surrounding case frame that is somewhat broader on the longer sides than on the shorter sides, while the inner display frame is, conversely, somewhat thinner on the longer sides than on the shorter sides. Creative's Zii0 has a case frame that is thin on the shorter sides and the upper long side but broader on the lower long side. The display of the Archos 101 has a surrounding frame, which in turn is inserted into the case in a way that creates a kind of gripping area on the shorter sides, preventing that useres frequently touch the display and leave fingerprints. Finally, Asus's Eee Pad has a case frame that surrounds the display only with a thin edge on the longer sides while it is broader and comes with a serrated surface on the broader sides, creating an impression of being easy to grip as well as an interesting optical effect. All those designs show alternative solutions that are distinct from the minimalistic style of the asserted Community design that are technically on an equal foting -- or may even be advantageous -- and provide more than merely redundant frills.

Any other conclusions would in this Court's view ignore that there is not only one solution that meets the technical requirements. Instead, it is possible within the framework of different technical requirements concerning stability, material, production costs, manufacturing considerations, weight, easiness to grip etc. to come up with alternative designs. The Court cannot find in the Regulation any rule according to which minimalistic solutions should be unprotectable. On the contrary, the purpose of the Regulation is to protect every design accomplishment related to the creation of a product design that distinguishes itself vom prior art in a manner that is relevant to the market.

Especially the combination of a minimalistically-designed front with a flat surface and a case that avoid sharp corners and edges as well as protruding or ornamental elements constitutes a design achievement a nd is -- as shown -- more than merely a technically required design. It characterizes the asserted Community design in a particular way.

[more praise of minimalistic design]

The Community design is novel and unique because it creates a different overall impression than the prior art.

The depictions in the science fiction movies "2001: A Space Odyssey" and "The Tomorrow People" are too unclear to discern a specific design. Accordingly, Defendants refer to them only as "first designs". In particular, the movie sequences do not show whether the glass front is surrounded by only a thin case frame, whether the display is in a lower position than the surrounding frame, and exactly how the edges, bezels and the back are designed. A first design idea might be gathered from this material, at least in retrospect, but not a Community design creating a particular overall impression through its characteristics.

The closest prior art are Knight-Ridder, Inc.'s "tablet newspaper" product study from the year 195 and the HP Compaq TC 1000 from the year 2002. But even those products are clearly distinguishable in their overall impression from the asserted Community design and cannot anticipate it. Therefore, the question of whether the "tablet newspaper" product study was ever known to domestic industry circles need not be addressed.

While Knight-Ridder's "tablet newspaper" product study shows a rectangular front side with rounded corners and a display of a generally thin profile, its specifics, in particular, the design of the bezels and the back, are not exactly discernible. {...] The lightness and puristic elegance of the asserted Community design is clearly not matched by [the Knight-Ridder design].


The asserted Community design is clearly distinguishable from the HP Compaq TC 1000. In particular, the prior-art product lacks, again, a thin case frame surrounding the front side. The HP Compaq TC 1000's case frame makes a rather bulging impression. At the upper edge it is rounded to such an extent that it forms a broad surrounding of the front side. [...] There are also other important differences that result in a different overall impression. For example, the HP Compaq TC 1000 [...] Therefore, this product does clearly not make a minimalistic, simple impression. [...] All in all, the asserted Community design comes across as much leaner and more elegant than the rather heavy- and clumsy-looking HP Compaq TC 1000, which one cannot yet imagine to carry with oneself all the time.

There are no closer designs with an earlier priority date. As a comparison of the relevant images with the asserted Community design shows, the contentions featured in [Samsung's] invalidition request [filed with the Office of Harmonization in the Internal Market] create an overall impression that is even far more distinct from Apple's asserted Community design than the two contentions discussed in the previous paragraphs, which Defendants also emphasized in their pleadings [in this case].

Plaintiff has the exclusive right to use its Community design according to Article 19(1) of the Regulation. This protection also extends, according to Article 10(1) of the Regulation, to every design that does not result in a different overall impression on an informed user. In this context, the Court has to come from the assumption of a medium-range or broad scope of protection of the asserted Community design.

At the time of the filing of the application fo rthe Community design, there was only a limited density of designs, and the designer enjoyed much design freedom. The presented prior art actually shows that there were only two designs of an earlier priorty date -- Knight-Ridder's "tablet newspaper" product study from the year 1995 and the HP Compaq TC 1000 from the year 2002 -- that already had some of the characteristics of the asserted Community design, though they were still distinct from it in terms of their overall impression. All other designs were far [from the asserted Community design]. Due to the low density of prior art, the designer enjoyed broad design discretion, which needs to be considered with a view to Article 10(2) of the Regulation and results in a broad scope of protection of the asserted Communtiy design, with the effect that even greater design differences of the accused [Galaxy Tab 10.1] design may not make a different overall impression on an informed user [reference to case law]. [...] Finally, the fact that the asserted Community design has now been challenged for the first time despite the product's intensely-contested competitive environment is an indication of a broad scope of protection.

The accused Galaxy Tab 10.1 design infringes on the asserted Community design because it makes on an informed user the same overall impression as the asserted Community design and therefore falls within its scope of protection.

The design elements that are characteristic of the asserted Community dsign are identifiable, with only minor deviations, on Defendants' accused tablet PC. [...]


[...] Furthermore, the different aspect ratio of the display, which amounts to approximately 4:3 in the case of the asserted Community design while the accused design has a longer and leaner aspect ratio of 16:10, does not result in a different overall impression. The aspect ratio is only one factor in the overall impression and only major deviations result in a different overall impression. There are no such deviations in this case. Instead, proportions are similar.


The legal consequence is that Plaintiff is entitled to an EU-wide injunction against Defendant#1. [...]

With respect to Defendant#2 [...] this Court does not have international jurisdictional competence as explained further above.


Therefore, this Court has used its judicial discretion in making linguistic adjustments to the description of the design characteristics in order to create sufficient precision beyond the sufficient specificity of Plaintiff's motion. Furthermore, the Court has not incorporated the second picture of the bezel into this decision [...].


Plaintiff raised its claims under unfair competition law only in the alternative [to a decision based on a Community design infringement]. Since a Community design infringement was identified, there is no need to further address the competition claims.


Secondary decisions [...]

The amount in dispute is determined to be EUR 2,000,000, whereby it amounts to EUR 1,000,000 for each Defendant, with EUR 200,000 corresponding to the part of the decision related to the [German market].

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