The Apple v Samsung Case: How Design Law in Europe Develops

Charles Gielen, University of Groningen

The war between Apple and Samsung on the outward appearance of the different iPhone and iPad versions versus the Galaxy tablets and phones resulted in a number of highly interesting, but also contradicting decisions by UK, German and Dutch courts. These decisions give us insight in the relatively new criteria of design law following from the Community Design Regulation No 6/2002 as well as the Design Harmonisation Directive No 98/71 and were decided almost at the same time as some very important decisions were rendered by the Court of Justice in Luxemburg, such as the Grupo Promer case (October 20, 2011, C-281/10) as well as the General Court, such as T-153/08 of  June 22, 2010 (Shenzhen), T-68/10 of June 14, 2011 (Sphere Time) and T-83/11 of November 13, 2012 (Antrax). These decisions teach us how to interpret the scope of protection of registered designs and in particular the meaning of the overall impression a design produces on the informed user. What is the relevance of the prior art in assessing this scope of protection and what is an informed user? What role does the degree of freedom of the designer play in assessing the scope of protection? Should we look at technical constraints only, or also to functional, marketing or other constraints? How should we look at the registration itself; does the intention of the registrant play a role; what do dotted lines mean, etc.?