Thursday, February 9, 2012

Düsseldorf court denies preliminary injunction against Galaxy Tab 10.1N: designaround pays off for Samsung

The leading German news agency, dpa (here's their story), and the AllAboutSamsung blog report that the Düsseldorf Regional Court has denied Apple's motion for a preliminary injunction against the Galaxy Tab 10.1N, a modified version of the Galaxy Tab 10.1 banned by the same court in August 2011.

Here's the court's press release (in German, like the articles).

The court determined that the 10.1N is reasonably distinct from Apple's products and, therefore, does not constitute an infringement of Apple's Community design (the EU equivalent of a U.S. design patent) or the German law against unfair competition.

The finding of no infringement of Apple's asserted design-related right comes as no surprise. Last week, the Düsseldorf Higher Regional Court (an appeals court) held that even the original Galaxy Tab 10.1 does not fall within the valid scope of the asserted Community design. Also, the lower court held a hearing on December 22 on the 10.1N but scheduled a decision for today, which was already an indication that Apple's case was considered weaker now than back in the summer.

Still, the lower court could have found a violation of the German law against unfair competition, arguing that Samsung seeks to exploit the image of the iPad by offering a product that looks very similar. The appeals court had held the original Galaxy Tab 10.1 to violate competition law. But it appears that Samsung's designaround (modifications of product design in order to steer clear of further violation) has done the job.

If Samsung had lost today, I guess it would have tried again with yet another modified product.

Today's ruling is also good news for Motorola Mobility, whose Xoom tablet Apple is attacking with the same Community design (and presumably also on the basis of unfair competition claims) in Düsseldorf. If even the Galaxy Tab 10.1N steers clear of infringement, it's going to be quite difficult for Apple to win the Xoom case.

However, it's important to understand that today's decision is merely the denial of a preliminary injunction. In parallel to all those efforts to have different Samsung tablets banned as a result of fast-track proceedings, Apple continues to assert four different design-related rights against ten Samsung smartphones and five Samsung tablets, including the ones against which Apple sought preliminary injunctions. That case will take more time to be resolved (I guess we're talking about a year or more just for the regional court, plus a possible appeals proceeding before a higher regional court). Whatever the courts decided so far is not going to be binding on them when they adjudicate the case at the end of the full-blown main proceeding. Some may argue that the courts will want to take consistent positions, but with multiple design-related rights in play and a lot more time for expert reports and legal arguments, the outcome of the main proceeding is anything but a foregone conclusion. If it was a lost cause, Apple wouldn't be spending time and money on it.

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