Community Designs form Latest Battleground in Apple/Samsung Dispute

Apple has been having a rather good time of it over the past few weeks. First came its success in shutting down the five fake Apple stores (Merpel asks: shouldn’t that be ‘stoers’?) in Kunming, China (noted by the IPKat here, and here). Then came the foiling of the somewhat medieval zipwire shenanigans of a group of smugglers attempting to get iPads into Hong Kong on the cheap. As Engadget reports, “The unsanctioned exporters fired a slingshot from a high-rise in Shenzen, dragging a zip line down to a small house just across the Sha Tau Kok river in Hong Kong.” Their cunning plan was rumbled, however, when someone spotted the wire and called the authorities. Having left a trail that even Hong Kong Phooey (right) would have struggled to miss, the fledgling smugglers were soon apprehended. Police simply followed the wire and discovered $46,000 of Apple products and four red-handed culprits.

However, yesterday Foss Patents brought news (via German news agency dpa) that Apple has just secured another win – and this time against a far bigger fish. Readers will be aware of the ongoing spat between Apple and Samsung over the alleged copying of the iProducts' styling in various of Samsung's recent mobile inventory items. The case in question concerns the styling of the iPad and its alleged infringement by some of Samsung's tablet offerings.

Foss Patents has recently explained that Apple was seeking that “Samsung be enjoined from “using, in particular, manufacturing, offering (including advertising), introducing into the market, importing, exporting and/or possessing for the said purposes”” the Samsung Galaxy Tab 10.1 (the one on the right below - the iPad is on the left) on the basis that it infringes the Apple’s iPad-related Community Design (No. 000181607-0001 (one of the pictures from which is reproduced above) with a priority date of 17/03/2004).

The case came before the Landgericht (district court) of Düsseldorf earlier in the week, which granted the preliminary injunction. This barred, with immediate effect, all distribution of the product in the European Union (except for the Netherlands, where a separate action is underway). Samsung is expected to appeal the decision. The Kats will bring you more news as they get it.

Designs and a matter of discretion: will Cassina go with the Flos?

It's definitely the season for referring intellectual property questions to the Court of Justice of the European Union for preliminary rulings. Only yesterday the IPKat reported on Case C-207/10 Paranova Danmark A/S, Paranova Pack A/S v Merck Sharp & Dohme Corp. (formerly Merck & Co. Inc.), Merck Sharp & Dohme B.V. and Merck Sharp & Dohme, and today it's the turn of Case C-198/10 Cassina SpA v Alivar Srl and Galliani Host Arredamenti Srl, sent to Luxembourg from the Corte d'appello di Milano, Italy.

Right: like the litigants in this latest reference, the IPKat has a substantial interest in furniture design

Cassina SpA makes some striking furniture, it seems, and the question [that's what Curia calls it. Merpel thinks there's more than one of them] referred for a ruling is this:

"Must Articles 17 and 19 of Directive 98/71 [on the legal protection of designs] be interpreted as meaning that the discretion accorded to the Member State to establish independently the extent to which, and the conditions under which, protection is conferred may include discretion to preclude such protection where a third party - without authorisation from the design copyright holder- had already produced and marketed in that State products based on the designs in question - those designs being in the public domain - before the date on which the national implementing legislation entered into force?

Must Articles 17 and 19 of Directive 98/71 be interpreted as meaning that the discretion accorded to the Member State to establish independently the extent to which, and the conditions under which, protection is conferred may include discretion to preclude such protection where a third party - without authorisation from the design copyright holder - has already produced and marketed in that State products based on the designs in question, where protection is precluded within the limits of prior use?"

The IPKat understands from a circular from the UK's Intellectual Property Office that this case has been stayed pending judgment in Case C-168/09 Flos SpA v Semeraro Casa & Famiglia SpA, which the Kat has helpfully if indigestibly noted here. If this is so, is it worth referring it now at all?

Merpal adds: as usual, if you want to make any comments on it which might inspire the UK government to intervene [assuming it can still afford to do so], please email the IPO here, presumably some time in the next few days.

Cassina furniture here
Cassina cat here
Cassata here
Cassandra here
Cassava here