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The Court of Appeal (CoA) has thrown out a bid by technology giant Apple to reverse a High Court order that forced it to alert consumers that its rival, Samsung, did not copy the iPad.
Freshfields Bruckhaus Deringer partner Justin Watts had brought in heavyweights Tony Grabiner QC of One Essex Court and Michael Silverleaf QC of 11 South Square to lead the appeal for Apple.
Samsung also brought in a silk to respond to the appeal, with 11 South Square’s Henry Carr QC instructed by Simmons partner David Stone.
The battle between the two technology giants has been high profile, helped in part by a ruling given in July by Judge Birrs QC that fiound that Samsung’s Galaxy tablets do not look “cool” enough to be mistaken for Apple’s iPad (10 July 2012).
That judgment laid the basis for the publicity order given later the same month in which Apple was ordered to make the ruling known to consumers (24 July 2012).
The CoA decision handed down today (18 October) states: “Apple was immensely concerned about this order. Quite apart from the public grovel which it would involve, it had the further concern that this notice on its homepage would substantially interfere with the design and layout of its important marketing tool, its homepage.
“So Apple immediately applied to this court for the order to be suspended pending this appeal.”
Sir Robin Jacob, who gave the lead ruling, found that the publicity surrounding HHJ Birss’s “not as cool” statement has caused confusion as to the facts of the case, given that Apple was running concurrent legal battles in Germany that had generated reports that it had secured a Europe-wide injunction against Samsung.
The judge said: “What was the ordinary consumer, or the marketing department of a potential Samsung customer, to make of it? On the one hand the media said Samsung had won, on the other the media were saying that Apple had a German Europe-wide injunction.”
He continued: “Apple itself must [having created the confusion] make the position clear: that it acknowledges that the court has decided that these Samsung products do not infringe its registered design. The acknowledgement must come from the horse’s mouth. Nothing short of that will be sure to do the job completely.”
The legal line up:
For the appellant Apple: One Essex Court’s Tony Grabiner QC and 11 South Square’s Michael Silverleaf QC to lead Richard Hacon of 11 South Square, instructed by Freshfields partner Justin Watts.
For the respondent Samsung: 11 South Square’s Henry Carr QC to lead 11 South Square’s Anna Edwards-Stuart, instructed by Simmons & Simmons partner David Stone.