Samsung to Seek Ban on iPhone 4S Sales in France and Italy

[BaldiMac]

I see what you're talking about.
The dots and dock view are not in the app menu.
That is a personal page any user can setup.
Simply press and hold an app icon in the app menu and drop it on your home screen. (you get 4 pages plus your home screen by default)
You can put icons or widgets or a mix of both.
You can even arrange it to look like an iPhone home screen if you choose, but again, they don't ship looking that way.

I own and have my Atrix sitting next to me.
I'm pretty sure I know exactly what my app screen looks like.

Exactly. Samsung obviously modified the app menu to look like the iPhone home screen. And they used it in their marketing. I don't understand why people would argue that this didn't happen.

 

[rjohnstone]

Exactly. Samsung obviously modified the app menu to look like the iPhone home screen. And they used it in their marketing. I don't understand why people would argue that this didn't happen.

I agree.
You can't argue against that.

EDIT:
But I will say this, they don't ship the phones looking like that. You have to intentionally set it up that way.

Looks like the marketing department has some explaining to do.

 

[TraceyS/FL]

I thought this website did a great job showing the trade dress stuff, item by item.

There are 3 articles on there I believe....

http://peanutbuttereggdirt.com/e/20...to-apples-ip-claims-hardware-icons-packaging/

 

[Reach]

I thought this website did a great job showing the trade dress stuff, item by item.

There are 3 articles on there I believe....

http://peanutbuttereggdirt.com/e/20...to-apples-ip-claims-hardware-icons-packaging/

Nice overview, thank you.

 

[TraceyS/FL]

Nice overview, thank you.

I had stayed out of any arguments because i knew squat about it all, but i came across that in the comments on ARS a few weeks ago and felt I understand that part better.

I'm still staying out, and saying nothing more than I believe in each companies right to defend their IP.....

But at least i understand what the heck trade dress is now!

 

[vitzr]

This is just business.

Nothing to take personally as so many over invested Apple fans are doing.

When you judge Samsung harshly, you're also judging Apple.

Why everyone thinks they're an expert is very amusing. Why play the fool?

Use your iToys and relax. This is Apples battle.

 

[kdarling]

I thought this website did a great job showing the trade dress stuff, item by item.

http://peanutbuttereggdirt.com/e/20...to-apples-ip-claims-hardware-icons-packaging/

This has all been covered before. Long story short:

There are three major (and a lot of minor) tests for trade dress infringement. Only the likelihood of confusion at the point of sale will probably matter.

Icons: Anyone who reads the trademarks can easily see that Samsung's don't infringe, since the details and colors are pretty different. They might look similar, but they're not copies by any means. Still, by themselves they might be confusing, but not when seen as part of the overall device.

Packaging: Tablets and phones aren't left out on shelves for customers to pick up to take to a cash register. Buyers have to ask for the product by name. For those and related reasons I've written about (such as Apple never advertising by package design), it's not a good basis for confusion.

(That goes double for the useless arguments about plugs. Not even Apple brings those up.)

Design: As many people have pointed out, the phones don't really look alike in real life. The Samsungs are bigger, different material, and often have a bulge along their back. Certainly nothing like an iPhone 4.

On the upside, Samsung did not directly copy anything, but obviously spent a lot of effort trying to resemble Apple styles without actual infringement. On the downside, the intent to resemble can be counted against them.

IMO, the biggest factor in Samsung's favor is that courts aren't going to easily be convinced that a person buying an expensive personal device is going to be so easily confused by visual similarities that they think the Samsung is actually an iPhone or sanctioned by Apple. Apple's lawyers have already been told in other preliminary hearings that their current evidence in this respect is far too weak.

 

[hchung]

Right now....large capacitive displays and RAM.

Actually, while Samsung does make large amounts of ram and NAND, they're not the only company that does so.

Also, they make LCD displays in mass quantities, but not the capacitive sensor layer that goes over the LCDs.

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But really this is 3g Technology... does it really matter in a world vastly converting to 4g internet?

While there are 4G deployments, it's a stretch to say that the world is converting to 4G at any decent rate. The number of 4G devices sold in the world AND being used on a 4G network is probably less than the number of HP TouchPads.

(where 4G defined as LTE and WiMax)

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I agree.
You can't argue against that.

EDIT:
But I will say this, they don't ship the phones looking like that. You have to intentionally set it up that way.

Looks like the marketing department has some explaining to do.

Samsung's out of the box (at least when I handled an early Samsung Captivate) experience includes both the dock row icons and dotted paging indicators. The out-of-box config may have changed now, but yeah, when I played with a new one, it was very iphone-ish.

 

[BaldiMac]

This has all been covered before. Long story short:

There are three major (and a lot of minor) tests for trade dress infringement. Only the likelihood of confusion at the point of sale will probably matter.

Icons: Anyone who reads the trademarks can easily see that Samsung's don't infringe, since the details and colors are pretty different. They might look similar, but they're not copies by any means. Still, by themselves they might be confusing, but not when seen as part of the overall device.

Packaging: Tablets and phones aren't left out on shelves for customers to pick up to take to a cash register. Buyers have to ask for the product by name. For those and related reasons I've written about (such as Apple never advertising by package design), it's not a good basis for confusion.

(That goes double for the useless arguments about plugs. Not even Apple brings those up.)

Design: As many people have pointed out, the phones don't really look alike in real life. The Samsungs are bigger, different material, and often have a bulge along their back. Certainly nothing like an iPhone 4.

I think that the biggest problem with the rational arguments on this topic is that people are arguing different things. Some people are simply saying that Samsung copied Apple. Some people are only talking about legality of the copying. Some people are arguing that it's not copying if Apple didn't invent it.

On the upside, Samsung did not directly copy anything, but obviously spent a lot of effort trying to resemble Apple styles without actual infringement. On the downside, the intent to resemble can be counted against them.

IMO, the biggest factor in Samsung's favor is that courts aren't going to easily be convinced that a person buying an expensive personal device is going to be so easily confused by visual similarities that they think the Samsung is actually an iPhone or sanctioned by Apple. Apple's lawyers have already been told in other preliminary hearings that their current evidence in this respect is far too weak.

But is confusion the only consideration? My understanding is that simply trying to resemble a competitor enough to trade off of their reputation is a violation of trade dress regulations. In other words, the consumer doesn't literally have to think they are buying an iPhone when they buy a Samsung phone for there to be a problem.

 

[Reach]

I think that the biggest problem with the rational arguments on this topic is that people are arguing different things. Some people are simply saying that Samsung copied Apple. Some people are only talking about legality of the copying. Some people are arguing that it's not copying if Apple didn't invent it.



But is confusion the only consideration? My understanding is that simply trying to resemble a competitor enough to trade off of their reputation is a violation of trade dress regulations. In other words, the consumer doesn't literally have to think they are buying an iPhone when they buy a Samsung phone for there to be a problem.

Good post on both parts!

 

[kdarling]

But is confusion the only consideration? My understanding is that simply trying to resemble a competitor enough to trade off of their reputation is a violation of trade dress regulations.

In the US, at least, a trade dress case has to pass some basic 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 its design isn't required to build a tablet, the iPad passes this test and can go to (2).

2a) Distinctiveness. Is the design totally unique in that field? I think the iPad fails this, and Apple seems to think so too, since their lawsuits have all concentrated on the next few tests:

2b) Secondary meaning. If it's not unique, then has it acquired secondary meaning? Apple will hope to prove that the shape automatically implies only an "iPad" to most people, and not just any tablet. This is an uphill battle for them, since they have not emphasized the shape in their ads, preferring instead to concentrate on talking about apps.

If they cannot demonstrate (2b), then test (3) becomes the deciding factor:

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.

How well known the products / makers are, also plays a part. A lawsuit over Excedrin PM and Tylonel PM using the same "PM" suffix and similar packaging was dismissed because the well known names Excedrin and Tylonel took precedence in avoiding customer confusion. This is partly why it's important if the Samsung name is displayed or not.

 

[antbikerjl]

Originally Posted by antbikerjl
That also shows very little. You need to understand that Samsung is BEHEMOTH of a company. What you fail to realize is the profits Samsung was making when Apple was barely making any years and years ago. Also, based on how most Asian providence work, Samsung DOES NOT need to account for their subsidiaries in their revenue/income/profit reports. So in essence, companies Samsung fully owns in one sense or another are not accounted for their balance sheets and reports.

EDIT: Heres a small piece of information:

"Veiled revenue Consolidated revenue is the sum of the revenues perceived by the company and the revenues from its subsidiaries all together. In FY 2009, Samsung Group had a revenue of 220 trillion KRW ($$172.5 billion), financial results are based on parent companies. In FY 2010, Samsung reported 280 trillion KRW($258 billion) worth of revenue, and 30 trillion KRW($27.6 billion) profit.(* Based upon a KRW=USD exchange rate of 1,084.5KRW per USD, the spot rate as of 19 August 2011) However, they also do not contain the revenues of overseas subsidiaries, and no one knows about real revenues."

Either way you look at it, Apple would be nowhere without Samsung in terms of technology due to Samsung's history of innovating key components used in everyday electronics. However, the same could be said that Samsung smartphones may also not be how they are today without seeing success from the iPhone...

I love the downvotes on this post. Reminds me of ostriches with their heads in the sand, only that they're now also going "grrrrrr....".

Thanks for the support! I hate when people try to act like they know something when they have not a single clue. As a post I made earlier in this particular topic, Apple couldn't even afford the FACTORIES or FACILITIES Samsung uses to create their products. With a pretty good understanding on how businesses operate, I am fairly certain Samsung Co. in all it's entirety is worth in the upwords of mid-to-upper hundreds of billions of dollars in assets, cash-on-hand, and patent-related entitlements. In terms of sheer power, I would rate them as one of the most powerful companies in the world, even moreso than most top-tier banks in terms of influence in the technology field ranging from retailers, to designers, to technology in general and political power. You think gas companies have power and influence, you have NOT seen anything, you can bet on that!

I am not an Android, nor a Samsung fanboy by any stretch. I own both Mac, Windows, and Android products in my home and workplace. I am more neutral/indifferent, I just want to voice my thoughts onto people that can't tie their shoes correctly, or know up from down...

 

[divinox]

What about the phone lying down? Does that remind you of Apples grid-layout? Would you be blind not to see that?

Image

I think the phone you posted does look a lot like the 3G, and that this one looks a lot like 4.

Image

I have no horse in this race, but I'm baffled that so many refuse to admit that much of what Samsung has done is suspiciously close to Apples successful products.

...which, in turn, is suspiciously close to successful products that preceded it (since you were talking about grid of icons).

 

[divinox]

In the US, at least, a trade dress case has to pass some basic 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 its design isn't required to build a tablet, the iPad passes this test and can go to (2).

2a) Distinctiveness. Is the design totally unique in that field? I think the iPad fails this, and Apple seems to think so too, since their lawsuits have all concentrated on the next few tests:

2b) Secondary meaning. If it's not unique, then has it acquired secondary meaning? Apple will hope to prove that the shape automatically implies only an "iPad" to most people, and not just any tablet. This is an uphill battle for them, since they have not emphasized the shape in their ads, preferring instead to concentrate on talking about apps.

If they cannot demonstrate (2b), then test (3) becomes the deciding factor:

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.

How well known the products / makers are, also plays a part. A lawsuit over Excedrin PM and Tylonel PM using the same "PM" suffix and similar packaging was dismissed because the well known names Excedrin and Tylonel took precedence in avoiding customer confusion. This is partly why it's important if the Samsung name is displayed or not.

As for 1, W8 tablets (and many more i guess) going for them "bezel-gestures" more or less needs edge-to-edge glass, as a non-flat surface would make it "break" (not technologically, but in the eyes of the user).

Sure, i guess you could achieve a somewhat similar feel regardless, but.. should you have to, if you can point to the design having functional properties? Do you know?

 

[BaldiMac]

...which, in turn, is suspiciously close to successful products that preceded it (since you were talking about grid of icons).

Not a grid. Apple's grid layout. Samsung's app menu looks more like Apple's grid than the standard Android app menu. It's a "4x4 grid on a black background with title bar at top separated from a 4 item dock by small dots to indicate the number and position of the horizontal pages." Samsung obviously copied the grid layout used by Apple and used it in their marketing. Strangely, no other Android manufacturer has an App menu that looks almost exactly like Apple's home screen.

 

[DeathChill]

...which, in turn, is suspiciously close to successful products that preceded it (since you were talking about grid of icons).

I am 100% certain you don't even want to attempt to understand the argument.

 

[Lennholm]

As well as sexy products that work brilliantly Apple always has immaculate customer service, go to a supermarket or clothes shop and you will get some drone on minimum wage giving you a vacant look as if you are something on the bottom of their shoe and seeing you as an inconvenience that is going to stop them talking all day about the latest sexual conquests they had at the weekend, go to an Apple store you find knowledgeable, friendly and enthusiastic staff who live and breathe Apple

If only Apple would start up a supermarket

Make no mistake, Apple Store and AppleCare personell are minimum wage workers that are doing it while looking for something better.
AppleCare is sometimes outsourced to some call center business that also provide this service for other companies, like HP, Adobe and more. The quality is the same across.

What is to stop Samsung sabotaging their own components or giving Apple a known dodgy batch so that iPad's/iPhone's etc don't work properly ? I would say that could well be a serious danger now and on that basis alone let alone any others it is in Apple's interests to terminate all agreements with Samsung.

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My issue is with their phones and tablet computers division, I could probably find hundreds of things in my house with some Samsung DNA on and it is unavoidable, I would be happy to see Samsung driven out of the phone and tablet market and the rest of their companies and divisions carrying on

Certainly the contract between Apple and Samsung makes Samsung liable for defective parts, not to mention the legal trouble Samsung would be in if they tried something like that.
Also, if the quality of Samsung components start to decline Apple may very well look to start getting their parts from multiple other sources.

Petty Crap? Really? So if you had spent billions of dollars and years of development on something revolutionary, and then another company literally copied EVERY detail of it right down to the number and layout of icons on the screen you'd be completely fine with that?

This wont become true no matter how many times it's repeated.

What about the phone lying down? Does that remind you of Apples grid-layout? Would you be blind not to see that?

Image

I think the phone you posted does look a lot like the 3G, and that this one looks a lot like 4.

Image

I have no horse in this race, but I'm baffled that so many refuse to admit that much of what Samsung has done is suspiciously close to Apples successful products.

Ok, it also reminds me of the menu of many phones that came before iOS,so what's your point?
The GS2 looks more like the LG Prada than the iPhone 4

Why does this argument matter? Samsung copied Apple's home screen and called it an application menu. How does that dispute the fact that copying was involved? Is it even a claim that's involved in any of Apple's lawsuits? Apple didn't invent the grid layout, only the irrational posters think the whole grid thing is a copy on its own. But that doesn't change the fact that the app menu shown above is a copy of Apple's home screen.

This argument is frivolous as long as people continue to argue different things than what they are responding to.

And Apple copied the main menu from Sony Ericsson and Nokia phones and called it the home screen

 

[Rodimus Prime]

Not a grid. Apple's grid layout. Samsung's app menu looks more like Apple's grid than the standard Android app menu. It's a "4x4 grid on a black background with title bar at top separated from a 4 item dock by small dots to indicate the number and position of the horizontal pages." Samsung obviously copied the grid layout used by Apple and used it in their marketing. Strangely, no other Android manufacturer has an App menu that looks almost exactly like Apple's home screen.

Just going to point out to you that Samsung is not the only one to use the 4x4 grid lay out with horizontal swiping between the pages and has small dots to mark the page.
Mind you Samsung is the only one that has 4 icons never change.

 

[divinox]

I am 100% certain you don't even want to attempt to understand the argument.

Oh, i get the argument. In fact, i've stated several times that i found that galaxy ace (?) to be an embarrassing product. Its just that i find the grid-argument to be about as embarrassing as the product itself.

 

[Lennholm]

Yeh right. You do know that it is not cool to say cool anymore? (well for about 8 years now?)

Thanks for supporting my point of the importance to many people of being fashionable.

 

[kdarling]

As for 1, W8 tablets (and many more i guess) going for them "bezel-gestures" more or less needs edge-to-edge glass, as a non-flat surface would make it "break" (not technologically, but in the eyes of the user).

Sure, i guess you could achieve a somewhat similar feel regardless, but.. should you have to, if you can point to the design having functional properties? Do you know?

What an interesting situation you bring up:

I would guess that if someone tried to claim trade dress on a Windows 8 (or Android) tablet, the defendant could indeed claim that the need for a full (or fuller) glass surface to swipe starting outside the display, is a functional design requirement and thus not protectable.

OTOH, until recently the iPad could claim their design was NOT functional because they had no such swipe gestures.

Now comes iOS5 with the notification swipe, and suddenly the same iPad design has a functional aspect to it, just like with the W8 or Android designs !

 

[fertilized-egg]

Not a grid. Apple's grid layout. ...
Strangely, no other Android manufacturer has an App menu that looks almost exactly like Apple's home screen.

Yup. Plus I'll add that no other Android manufacturer had the combination of the 3GS-like sizeable chrome trim around the screen plus the mechanical home button like Samsung gave the first Galaxy S. It's not just that they had a "rectangular touchscreen," but that Samsung specifically picked out the style used by Apple when every other Android manufacturer was using a different style.

 

[Oletros]

Yup. Plus I'll add that no other Android manufacturer had the combination of the 3GS-like sizeable chrome trim around the screen plus the mechanical home button like Samsung gave the first Galaxy S. It's not just that they had a "rectangular touchscreen," but that Samsung specifically picked out the style used by Apple when every other Android manufacturer was using a different style.

Galaxy home button is totally different from iPhone home button

 

[fertilized-egg]

Galaxy home button is totally different from iPhone home button

It is rectangular instead of circular, sure, but what other Android phone had the chrome trim and a mechanical home button in the middle? BTW I'm talking about the original Galaxy S, not the carrier-modified American versions.

 

[Oletros]

It is rectangular instead of circular, sure, but what other Android phone had the chrome trim and a mechanical home button in the middle? BTW I'm talking about the original Galaxy S, not the carrier-modified American versions.

I have an European Galaxy S and the home button is totally different from my iPhone 3G