Apple v Samsung - Don't Mess with the Court of Appeal!
9 November 2012, Peter Gemmell
On 18 October 2012, the Court of Appeal dismissed Apple's appeal from the High Court’s judgment that that none of the Samsung tablet computers infringed Apple's Community registered design No. 000181607-001. And because the Court believed that Apple had created uncertainty in the market place by making misleading statements, the Court ordered Apple to publish the true facts using specified wording.
Apple duly published a statement on its UK website, but with the specified wording interspersed with three paragraphs of its own words. The additional wording gave a misleading impression of the subject of the litigation and created the impression that Samsung had been held to infringe corresponding rights in other territories.
Samung complained, and the complaint was upheld in its entirety by the Court of Appeal, in its recently-published, and entertaining, judgment. Costs were awarded on an indemnity basis (a higher scale than usual, as a mark of the Court’s disapproval of Apple’s behaviour). In the final words of Sir Robin Jacob “I hope that the lack of integrity involved in this incident is entirely atypical of Apple”.
Sir Robin was particularly scathing about the submission by Apple’s counsel that “for technical reasons” it would take Apple 14 days to replace the offending statement on its website with a corrected one.
The Court gave Apple 48 hours (which Sir Robin regarded as generous) to comply or for Apple’s boss to submit an affidavit explaining exactly why more time was needed.
Apple complied. The Court-ordered statement is now accessible via a link at the foot of Apple UK’s home page and the Court mandated that it remain there until at least 15 December 2012.