Apple vs. Samsung: Apple scores

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Apple has won a preliminary injunction barring Samsung’s sale of its Galaxy Tab in every European Union member nation but the Netherlands, the most significant victory so far in an escalating legal clash between the two technology powerhouses.

Samsung has been prohibited?from importing and distributing its flagship Galaxy Tab 10.1 across most of Europe following a successful action by Apple Inc. which alleges that the device copies Apple?s designs.

The decision does not stop retailers from selling existing stock. The tablet went on sale in theU.K.on August 4.

Dominance fight

The ruling is an important win for Apple, which is locked in a world-wide legal tit-for-tat battle as the two giants fight for dominance of the electronic-gadget market. Apple fired the first salvo in the U.S., filing a patent suit in April against Samsung, claiming the Korean company ?slavishly? copied its iPad and iPhone. They have also locked horns in the U.K.,South Korea,Germany and Japan.

This case is to do with the appearance of the devices and is not a patent dispute.?In a 44-page document filed with a court in D?sseldorf, Apple alleged that Samsung?s tablet is a copy of the iPad, having the same design, and even cites the packaging of the Galaxy Tablet.

Yesterday?s injunction does not cover the Netherlands. Apple is going to court today in The Hague.

Samsung to ‘act immediately’

Adam Howorth, spokesman for Apple EMEA, said in a prepared statement:

?It?s no coincidence that Samsung?s latest products look a lot like the iPhone and iPad, from the shape of the hardware to the user interface and even the packaging. This kind of blatant copying is wrong, and we need to protect Apple?s intellectual property when companies steal our ideas.?

The company refused to comment further. Freshfields Bruckhaus Deringer LLP, which was acting for Apple, also refused to comment.

Samsung also refused to comment and said in a prepared statement:

?Samsung is disappointed with the court?s decision. We intend to act immediately to defend our intellectual property rights through the ongoing legal proceedings in Germany and will continue to actively defend these rights throughout the world.

We will take all possible measures, including challenging this preliminary injunction, to ensure Samsung?s innovative mobile communications devices are available to customers in Europe.

This decision by the court in Germany in no way influences other legal proceedings filed with the courts in Europe and elsewhere.?

A spokesman had previously said that ?the request for an injunction was filed with no notice to Samsung, and the order was issued without any hearing or presentation of evidence from Samsung.?

A spokeswoman for Dixons Retail Group, the U.K.?s largest?electronics?retailer, said it was still selling the device today.

Design dispute

According to Jamie Nowak, a partner for Norton Rose in its Munich office, the D?sseldorf federal court has a reputation for its expertise in handling IP disputes. The case falls under a European Community design right directive (Directive 98/71/EC), which established protection for registered designs across the European Union. A design was defined as:

?The appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation?.

Apple claimed to have done market research that discovered 80-percent of those surveyed believed the iPad and Galaxy Tab to be either ?identical? or ?similar in general impression,? though the judge criticized the company?s research methodology. According to Apple?s lawyers, consumers ended up ?confused and angry? because of the original?Samsung Galaxy S?because of its similarity to the iPhone.

Mr. Nowak said that the initial decision by the judge to grant the injunction did not require Samsung to be present. However, given the urgency of the case, he said he would expect Samsung to be appealing for an immediate hearing.

?Depending on the judge?s schedule, I would expect that to be before the end of the week,? he said. That hearing would take place in court with representation from both parties.

?Apple can file a response to the appeal and this will be also discussed in the hearing. An immediate decision will be reached in the court.?

Should the hearing find in Samsung?s favor, he said, Apple would be liable for damages. Further appeals would be possible.

No effect on launch plans

Younghee Lee, senior vice president of global marketing at Samsung?s mobile business, told the Reuters news agency that the German ruling would not affect plans to launch the tablet in India today and in Australia in September.

However Samsung has already been to court in Australia and on Monday voluntarily agreed that it would not import or offer to sell the device pending resolution of the case. Samsung also agreed to provide Apple?s lawyers with three samples of the Galaxy Tab 10.1 it intends to sell in Australia for ?review and analysis,? according to court documents. Samsung had planned to launch the Galaxy Tab 10.1 in Australia this month.

The Cupertino-based company won a preliminary ruling in July against HTC for infringing on 20 Apple patents related to the iPhone?s user interface, underlying architecture and hardware. The interim ruling found that HTC had infringed on two patents.

?We can sit by and watch competitors steal our patented inventions, or we can do something about it. We?ve decided to do something about it,? said Steve Jobs, Apple?s CEO, when the suit was filed in March 2010. ?We think competition is healthy, but competitors should create their own original technology, not steal ours.?

The entire mobile sector is engaged in a bitter internecine battle with suit and countersuit that rivals the diplomatic patchwork that existed in Europe at the start of World War One. Companies seek to build up an arsenal of patents which they can use to countersue in the hope of reaching an agreement.

Android link

What links many of the suits that Apple is undertaking is Google?s Android operating system. Google?s Chief Legal Officer, David Drummond,?launched an attack on Apple:

?A smartphone might involve as many as 250,000 (largely questionable) patent claims, and our competitors want to impose a ?tax? for these dubious patents that makes Android devices more expensive for consumers. They want to make it harder for manufacturers to sell Android devices. Instead of competing by building new features or devices, they are fighting through litigation.?

A recent report by analysts Forrester said Europe was a key battleground in the fight for the tablet market, writing: ?We are projecting that EMEA (Europe, Middle East, and Africa) will account for 14.5 million, or 30%, of worldwide consumer tablet sales in 2011.?

Canalys, the technology analysis service, confirmed that Asia Pacific (APAC) became the largest smart phone market region, with year-on-year growth of 98% to 37.3 million units, putting it ahead of Europe, the Middle East and Africa (EMEA) for the first time since Q3 2007.

At a platform level, Android?s continued dominance was boosted by good performances by a number of key vendors. ?HTC, Samsung, LG, Motorola and Sony Ericsson drove Android shipments in the first quarter, with each vendor shipping well over 3 million devices,? said Principal Analyst Pete Cunningham. ?Samsung also shipped nearly 3.5 million bada operating system-based smart phones, outperforming total shipments of Windows Phone devices by more than a million units.?

Sources: FT, WSJ, Slashgear, canalys

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