Apple Finds Samsung’s Look and Feel Strangely Familiar

It’s major news by now that Apple is in the process of suing Samsung for intellectual property infringement. But aren’t they always suing one of their competitors? In fact, the giants of smartphone technology—Apple, Microsoft, Nokia, HTC, Motorola—seem to be suing each other every time we turn around. So what makes this issue any different?

Image by The D34n. Some rights reserved.

How is this lawsuit different from Apple’s other lawsuits?

A look at the previous lawsuits reveals that Apple’s specific complaints have historically been, primarily, operating-system-related; in other words, Apple has claimed that other devices mimic the nuts and bolts of the device, the technology the phone is based on.

While most of these specific complaints defy comprehension for those of us who aren’t intimately involved in the IT world, the main (and admittedly oversimplified) difference here is that it isn’t the operating system Apple is going after—this time around, it’s a little more nuanced. This time, they’re going after the “look and feel” of the product.

Apple’s several-hundred-page lawsuit lists, among many other things, shared details such as a grid-oriented display of square icons with rounded corners and the shape and style of the box the phones come in. Silly, no? (For a detailed look at the case, you can review Nilay Patel’s excellent breakdown of the main issues—or, you can download a PDF of the entire case, if you have a few hundred hours to kill.) But when you look closer, maybe it’s not so silly after all.

Trade Dress

But what makes up the “look and feel” of a product? Tiny details, details that on their own seem completely ludicrous as a basis for a lawsuit (especially considering that the companies are almost incestually close), combine to create a whole—and if that whole might be easily confused with a new, competing whole, teams of lawyers start sharpening their pencils in anticipation.

For clarity, let’s backtrack a little and look at an infringement case from 1989. Author Georgia L.M. Roulo designed a line of greeting cards containing a line she took from one of her books. The cards had certain details—two silver foil stripes along the side, one color stripe and one brown stripe in the middle, brown ink, a handwriting-style font, and other small characteristics.

Roulo’s marketer, Russ Berrie, later created his own cards—two colored stripes on one side, another colored stripe on the other, brown ink, cursive font, and other similar-but-not-quite-the-same characteristics. The display rack was nearly identical, and price was identical…basically, there was no question that Berrie copied Roulo’s “look and feel” of the cards. He did not dispute this; his argument, which was thrown out, was that he was not responsible for infringement because each small detail could not be protected on its own.

“Trade dress” is defined as the visual characteristics of a product or its packaging. It is intended to protect consumers from being fooled by imitation products. Trade dress isn’t determined by any specific formula or set of criteria. It’s the sum total of all of the individual parts that make up a product, individual parts of which are not able to be protected. (Good luck trying to protect a single colored stripe on a greeting card with a copyright or patent.) Essentially, it isn’t the similarity of the technical aspects that was in question—it was the similarity from the point of view from an average consumer. Would you or I be able to tell the difference between the two card displays? At first glance, maybe not. Roulo very likely lost sales due to Berrie’s copying.

Is Samsung really guilty of infringement?

Returning to Apple and Samsung—while the products are based on completely different operating systems (Apple products us the Mac OS, while Samsung’s products in question run the Android OS), the two phones do appear remarkably similar.

But Tim Weber, business editor for BBC News, has an interesting perspective. According to him, this kind of high-stakes web of lawsuits is inevitable in a rapidly progressing field such as consumer electronics, and especially smartphones and tablets—being sued, he explains, is almost a “badge of honour,” proving that a company’s product is competitive to the point of worrying the other big boys in the field. In other words, smartphone technology is turning out to be just one more area where taking risks might get you sued, but it’s also the way to stay competitive.

So what happens next?

Before you preemptively get rid of your stock, remember that winning lawsuits, to these companies, may take a backseat to the primary objective: throwing a wrench into your competitors’ production schedules. As Tim Weber predicts, “Unless one side lands a killer blow, consumers should be able to sit back, and enjoy the fruits of this fierce competition.” Sounds like good advice to me.

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