The Court of Appeal recently confirmed the High Court's July decision that Samsung has not infringed Apple's design rights. Apple claimed that Samsung's Galaxy tablet was too close in appearance to design elements the company has protected in law and used in the design of its own tablet computer, the iPad.

By design

So what exactly is a design right? It's an intellectual property (IP) asset, a right over an intangible creation of the mind that, as partner at specialist IP firm EIP Darren Smythe explains, protects "the way something looks". He goes on to add that design rights filings often include pages of drawings appended to the legal documentation because, unlike patents which can be used to protect a gadget's inner workings or composition, a design right is focused on appearance, with the test of breach hinging not on the details of the product's specifications but on the "overall impression it makes on the informed user".

The rather subjective nature of a design right makes infringement hard to prove. For this reason and because the legislation creating them is only ten years old, there's a lack of case law on design rights, meaning that it's hard for lawyers to determine the scope of the law in this area. Darren explains that there's considerable doubt in the legal world over how broad the protection offered by a design right actually is.

Narrowing down the options

This case, in Darren's view, will go some way in defining a design right as a relatively narrow one. The Court of Appeal judges, despite acknowledging a number of close similarities between the two products, felt that many small differences between them, which would be noticeable to the "informed user" specified in the legal test, meant that Apple's design rights had not been infringed. The judgment went on to add a public policy justification for keeping the scope of design rights tight: "If the registered design has a scope as wide as Apple contends it would foreclose much of the market for tablet computers...Legitimate competition by different designs would be stifled."

Darren feels the case also broke new ground in terms of the final ruling made by the Court of Appeal. The court decided that Apple should publish a statement on its website stating that Samsung had not copied the design of the iPad. He explains that such a ruling is very rare in the EU, and has never been seen before in the UK - it's more usual for a guilty party to be asked to publish a statement saying they've infringed another party's IP rights. He thinks that the Court of Appeal's decision to issue this ruling is down to the fact that a German court recently passed an interim verdict on the dispute in favour of Apple, so a strong statement from the company was needed to dispel any potential confusion.

But it's not necessarily the end of the game for Apple. The company can still appeal to the UK's highest appeal court - the Supreme Court. But, for now, the Court of Appeal's ruling is binding across the whole of the EU. Elsewhere in the world, Apple has lost a similar claim in Australia, but in the US Samsung has been fined for copying the look and feel of an iPad and is currently appealing against this decision.