Wow, look at all you armchair attorneys here getting it wrong. OMG LOL the CLOCKS look the SAME it's COPYING Apple owes Switzerland a BEELEEON DOLALRS OMG LOL case CLOSED! Whoa there, Nelly. We aren't nearly that far along yet.
The clock is clearly a copy. No question about it, and no the relative widths of the hour marks and such don't matter -- taken it its totality, there is no question that it is the same design. However, it may or may not be infringement, and even if it is infringement, it may be legal. There are a number of bases by which this could be the case:
1. Applicable copyrights/patents may have expired, or may not have applied in certain territories central to Apple's use.
2. Prior art may exist that invalidates applicable copyrights/patents, despite the latter having been successfully asserted in the interim-- see the two cases of RKO Pictures vs. Universal (Universal wins on claim that King Kong is public domain and not a protectible RKO copyright) and then Universal vs. Nintendo (Nintendo uses RKO outcome to win against claim that Donkey Kong infringes a Universal copyright for King Kong) for an example of this particular chain of events.
3. Apple may own some entity that owns the rights to applicable copyrights/patents for the clock face, or may in the past have licensed those rights themselves. The SRR spokesperson may not have confirmed with the Swiss Attorney General (or whomever would handle this) on whether this is the case.
4. The one the Samsung folks hate: The design elements might be inseparable from the functional elements, and thus not protectible. Granted, after the Apple v. Samsung outcome, it seems like Apple won on this basis on some pretty broad design IP, but the courts, believe it or not, do hear and decide regularly on distinctions much more granular. It doesn't have to be the ribbon bike rack for this factor to apply.
5. Because iOS 6 is offered free of charge and the smartphone market is not especially closely tied to the rail transportation market, Apple's use of the design IP might be infringing but still constitute fair use under 17 USC 107. There is a four-factor balancing test that a court would apply, based on the "Oh, Pretty Woman" case of Campbell v. Acuff-Rose.
6. Other IP law provisions, domestic and international, may apply.
Or, of course, this might be flat-out infringement, to which Apple would be actionable. Following Apple's own rationale in Apple v. Samsung, at first glance it certainly looks that way on its face. My take is that it is unlikely that Apple's corporate attorneys greenlighted this without having some basis to believe it would pass legal muster, such as one or more of the above. But we don't know at this point, and indeed someone might have dropped the ball and punched their ticket out of Cupertino in so doing. Until more facts come out, we are just speculating. Clearly, Apple should be held to the same standard to which Apple wanted Samsung to be held, with regard to IP protection.
/I am not your attorney and this is not legal advice.
LMAO
