Obviously many posters on here don't understand the concept of "trade dress". One would never mistake a Nexus for an iPhone, but one can easily mistake a Samsung Galaxy for the iPhone. Samsung is going to lose, because they are trading on Apple's design, plain and simple.
IANAL, but I've partied at a Holiday Inn Express recently. And I've done a lot of research over the past few years. In the US, at least, a trade dress case has to pass three tests:
1)
Functionality. If a design is required for a certain type of product to be functional, or it greatly affects the cost to make it a different way, then you cannot protect that design. Since it's not a required design, the iPad passes this test.
2)
Distinctiveness. Is the design unique in that field? I think the iPad fails this part.
If it's not unique, then has it acquired secondary meaning? Apple will hope to prove that just the shape says "iPad" to most people. But then test (3) becomes most important:
3)
Likelihood of Confusion. This is the tricky one. Just looking similar doesn't cut it. The question is, would a normal consumer actually buy the wrong device, thinking it was either made, or authorized, by Apple?
Usually the more expensive and well known an item, the less likely to pass this test. For instance, in real life not many people pay hundreds or thousands of dollars for an item without knowing at least a tiny bit about them. (The courts aren't going to believe that you bought a Hyundai thinking that it was a Mercedes.)
How well known the products / makers are also plays a part. The lawsuit over
Excedrin PM and
Tylonel PM using the same suffix and similar packaging was dismissed because the well known names
Excedrin and
Tylonel took precedence in avoiding customer confusion. This is partly behind the debate over whether or not the Samsung name is shown.
Again, IANAL and I'm hoping that Cmaier will add more info.
