There seems to be a lot of misinformation in this thread. I pulled this wonderful response from RadarTheKat over at AllThingsD forum. It is truly insightful.
"That's not even close to the real question. And your assertion that you would NEVER EVER mistake a Galaxy S with an iPhone or that no one would also has little to do with this case other than to illustrate the similarity of the products. IOW, Apple does not need to prove that consumers are fooled into believing that the Samsung products are Apple products, but their case is bolstered by the fact that some consumers were thus fooled.
Since the Apple vs Samsung trial started there have been several articles per day detailing the courtroom proceedings. I've been seeing a lot of comments on these articles that show a lack of comprehension regarding patent law and how it applies. I thought I'd provide a bit of insight here for those who might not be conversant in the topic.
Apple's assertion in this lawsuit is that Samsung has copied elements of the iPhone and iPad for which Apple holds several patents. These particular patents are known as design patents. It seems a lot of folks don't take these patents seriously and go as far as to suggest that they should not exist. There is a good reason why they do exist, but to explain this we have to begin with a bit of background, and that requires that we speak about trademark law. Bear with me on this and hopefully I'll be able to clarify the purpose of design patents.
Most people are familiar with the idea of a trademark. By way of example, Kellogg, the cereal maker, has a trademark on Tony the Tiger and fought a battle with Exxon over Kellogs' clam that the use of an unnamed tiger in Exxon's advertising violates Kellogg's trademark for Tony the Tiger. Why? For 30 years, Exxon used its tiger character exclusively to promote its gasoline blend, but then, in the 1990's began using it to sell food. Kellogg said consumers are confused by the similarity between the cartoon tigers and may conclude that Kellogg is somehow behind soda, coffee and other items for sale at Exxon's TigerMart stores. The case went back and forth for several years, with Exxon initially winning the case, but ultimately losing on appeal. This case would not seem extraordinary to most people as most folks understand the concept of protecting a unique trademark like Kellogg's Tony the Tiger character.
Now let's look at another case, one that comes closer to the Apple vs Samsung case, but still an application of trademark law. This case is Ferrari vs Robert's Replicas. Back in the 1980's Robert's Replica's was in the business of manufacturing fiberglass kits that replicated the exterior features of Ferrari's Daytona Spyder and Testarossa automobiles. Roberts' copies were called the Miami Spyder and the Miami Coupe, respectively. Ferrari brought suit against Roberts in March 1988 alleging trademark infringement.
Here's what this case was about: After Ferrari vehicles have been on the market for a number of years, the design of those vehicles acquires what's called "secondary meaning", a concept at the heart of trademark law. Secondary meaning refers to an association of a design, like the design of a Ferrari vehicle, with quality and craftsmanship or other positive attributes one might associate with the Ferrari brand. After a design has acquired secondary meaning, trademark law can be applied to protect the company from those who would copy its designs and use them to promote their own products. Robert's copying of Ferrari's iconic designs could confuse the public and dilute the strength of Ferrari's brand. Just the presence of large numbers of replicas would dilute Ferrari's image of exclusivity, causing financial harm to Ferrari. Trademark law, under the concept of secondary meaning, protected Ferrari. The courts ruled in favor of Ferrari in this case and enjoined Roberts from producing the Miami Spyder and the Miami Coupe.
But how does this relate to design patent law?
The problem with using trademark law to protect a company's designs (under trademark law a product design or package design is referred to as "trade dress") is that a product has to be on the market for a long time before its design acquires secondary meaning (i.e. before the design becomes iconic and is seen by consumers as representative of the company behind the product). When competitors come in immediately after a new product design is introduced and copy it, as is the assertion in the Apple vs Samsung case, the originator of the design doesn't have the luxury of time needed for its product design to acquire secondary meaning in the eyes of consumers. Consumers immediately see the same design from multiple companies and so don't grow to associate the design with the company that originated that design.
This is where design patents come in. Where trademark protection of an iconic product design has no expiration, it takes time for a new product to acquire that protection (as stated above). A design patent offers protection of a new and novel design for a period of 14 years, giving a company protection of its original designs until they acquire secondary meaning and therefore protection under trademark law. So the design patent serves a valuable function for companies like Ferrari, and Apple.
Because this is not a trademark case, Apple does not need to prove that Samsung is trying to confuse the customer into believing that there are no significant differences between the products. Apple needs to prove only that Samsung infringed upon specific patented aspects of the iPhone and iPad designs. It's likely Samsung did this less to confuse customers and more to simply create a competitive product. Samsung's motivation is actually immaterial; only whether it actually created products that infringe Apple's design patents is what's in question. The fact that Apple has brought up the notion of trade dress and that some consumers were confused and believed they had purchased an Apple iPad when they actually purchased a Galaxy Tab is only to illustrate how similar the designs are, which bolsters its contention that infringement occurred."
