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Bad Apple?


12th Nov 2012

We reported in a previous news item the Court of Appeal’s decision in the long running saga of Apple v Samsung and the United Kingdom Patent County Court’s decision on infringement of Apple’s Community Registered Design. We, amongst most of the IP community thought that this was an end to the matter. This turned out not to be the case.

In the original County Court judgement (sometimes referred to in the press as the “cool” judgement) His Honour Judge Birss required Apple to publish a clarifying statement on the homepage of its website explaining that Samsung’s tablets did not infringe Apple’s Registered Community Design.

Apple duly published a statement which, whilst including the statements required by the Court, also included statements from the original judgement which described Apple’s products in a favourable manner. On top of this, the statement also referred to a result in Germany on a patent case which had been held in Apple’s favour, and also to the well publicised United States jury case where Apple was awarded over one billion US dollars in damages.

Samsung were of the view that this statement did not comply with the judgement because of the additional material included and went back to the Court of Appeal to obtain an order requiring Apple to publish a corrective statement.

The Appeal Court judges made it clear from the commencement of the proceedings that they took a dim view of what Apple had done. Apple’s statement came under some severe criticism, not only for including statements which put their products in a favourable light, in comparison to Samsung’s products, but also statements which were factually inaccurate in relation to proceedings in Germany.

As a result, the court required Apple to publish a corrective statement. Apple said it could take down the existing statement within 24 hours but required a period of 14 days to put up a new one. Sir Robin Jacob, in typically robust fashion, advised the court that he did not believe such a time period was required and that he would require “an affidavit from the head of Apple setting out in full detail” why such a time period would be required.

In the event, Apple was given 48 hours to place a corrective statement on its website. This has now happened.

There is, however, a further twist in the tail. Apple has used its software to interrogate any computer requesting access to the homepage and automatically configures the homepage such that this statement is not visible unless a user scrolls down. Whether this will lead to another application to the court from Samsung remains to be seen.

This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking before any action in reliance on it.

Author
Aidan Robson
Partner
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