Apple loses UK court appeal over Samsung's 'not as cool' iPad competitor

October 18, 2012 8:12 AM EDT

In a twist of fate worthy of Jeff Hardy, Apple [AAPL] looks likely to be forced to place an ad for Samsung on its UK Website following the loss of a crucial High Court appeal in London this morning.

[ABOVE: A Galaxy Tab 10.1. Will Apple's UK press ads read: "This is not an iPad. How could it be? It's not as cool."]

Sometimes Apple’s fall

Apple was appealing against July’s court decision that the appearance of Samsung’s Galaxy Tab wasn’t too closely aligned to the iPad. Judge Birss made headlines when he declared Samsung’s devices just weren’t as “cool” as Apple’s. 

The Judge ordered Apple to run a series of UK ads declaring Samsung is not in fact a copycat. Apple will be forced to place such ads on its UK website for at least six months, and will have to place ads in UK newspapers and magazines.

Speaking to the BBC a Samsung spokesperson said:

"We continue to believe that Apple was not the first to design a tablet with a rectangular shape and rounded corners and that the origins of Apple's registered design features can be found in numerous examples of prior art.

"Should Apple continue to make excessive legal claims in other countries based on such generic designs, innovation in the industry could be harmed and consumer choice unduly limited."

Apple has made no comment on the decision at time of writing.

Apple took the original decision to the UK Court of Appeal where it was reviewed by three judges, who upheld Birss’ declaration. 

Not so cool

One of the judges explained that this legal decision doesn’t address questions of copying, but simply looks at whether Samsung’s design is “too close to the registered design according to the tests laid down in the [UK] law.”

In my view that makes the decision urging Apple to run an ad claiming Samsung didn’t copy its design a little counter-intuitive, as the High Court appeals judge seems to be saying the decision only means Samsung’s product isn’t like an iPad, because it “isn’t as cool”.

Perhaps Apple will be able to spend a little legal time developing the ads in conjunction with the original Judge. Perhaps they could declare: “This is not an iPad copy. How could it be? It’s just not as cool.

Apple may still take the case to the UK Supreme Court, but a legal expert told Reuters: "I expect this will be the end of the line. An appeal to the supreme court is in principle possible but there has been no indication so far that Apple plan such an appeal. For the design of tablets in Europe this should be the final word."

The decision underlines the unpredictable nature of litigation. Both sides have turned to the courts because they found themselves unable -- or unwilling -- to reach some form of compromise.

Time to change tactics

Their mutual decision to engage in a series of cases which are being as closely followed as any soap opera is turning up differences in legal protections regarding patents and design on a global basis. A win in one country doesn’t guarantee a victory in another

In a court of law, victory is rarely rubber clad.

This means both company’s face the threat of a decision going against them, even if a similar case has rendered a different outcome in another jurisdiction.

Samsung’s decision to launch another wave of litigation this time based on 4G patents it offers under FRAND licenses isn’t necessarily going to go the Korean company’s way in all territories. 

Regulators worldwide are attempting to unravel the confusion around FRAND licensing, with the ITU convening an all parties meeting on these matters just last week.

While I’m aware that this morning’s decision will be a cause of rejoicing among Android partisans, it continues to astonish me as to why both sides can’t just figure things out politely. 

A mutual licensing agreement will eventually be forced on both parties -- that seems inevitable. Give this likely eventual outcome it would surely be a much better (and probably cheaper) move for Apple and Samsung to reach such a deal voluntarily. Though Samsung is enhancing its profile at Apple’s expense as litigation continues.

A peace deal is logical, but it seems passions on both sides are so inflamed that neither is capable of reaching consensus. And that’s even less cool than a Samsung tablet.

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