20. Even if that were not so, it cannot be legitimate to
break up the ordered notice with false material. And the matter added was indeed
false. Before introducing the quotes from HHJ Birss it begins:
In the ruling, the judge made several important points comparing the designs of
the Apple and Samsung products.
But the Judge was not comparing
"the Apple and Samsung products." There is not and has never been any Apple
product in accordance with the registered design. Apple's statement would
clearly be taken by ordinary readers and journalists to be a reference to a real
Apple product, the iPad. By this statement Apple was fostering the false notion
that the case was about the iPad. And that the Samsung product was "not as cool"
as the iPad.
21. I turn to the last paragraph. I do not think the order as
made precluded any addition to the required notice if that addition had been
true and did not undermine the effect of the required notice. But I do consider
that adding false and misleading material was illegitimate. For by adding such
material the context of the required notice is altered so that it will be
understood differently.
22. Here what Apple added was false and
misleading. I turn to analyse it. The first sentence reads:
However, in a case tried in Germany regarding the same patent, the court found
that Samsung engaged in unfair competition by copying the iPad
design.
That is false in the following ways:
(a) "Regarding
the same patent." No patent of any kind has been involved in Germany or here,
still less "the same patent."
(b) As regards the Community Registered
Design, the German Courts held that neither the Galaxy 10.1 nor the 8.9
infringed it. As to the 7.7 there was for a short while a German provisional
order holding that it infringed. Whether there was a jurisdiction to make that
order is very doubtful for the reasons given in my earlier judgment but in any
event the order had been (or should have been) discharged by the time the
Contested Notice was published.
(c) There is a finding and injunction,
limited to Germany alone, that the 10.1 and 8.9 infringe German unfair
competition law. But the statement is likely to be read as of more general
application.
23. The second sentence reads:
A U.S. jury also
found Samsung guilty of infringing on Apple's design and utility patents,
awarding over one billion U.S. dollars in damages to Apple
Inc.
That is misleading by omission. For the US jury specifically
rejected Apple's claim that the US design patent corresponding to the Community
Design in issue here was infringed. The average reader would think that the UK
decision was at odds with that in the US. Far from that being so, it was in
accordance with it.
24. The third sentence reads:
So while
the U.K. court did not find Samsung guilty of infringement, other courts have
recognized that in the course of creating its Galaxy tablet, Samsung wilfully
copied Apple's far more popular iPad.
This is calculated to
produce huge confusion. The false innuendo is that the UK court came to a
different conclusion about copying, which is not true for the UK court did not
form any view about copying. There is a further false innuendo that the UK
court's decision is at odds with decisions in other countries whereas that is
simply not true.
25. The reality is that wherever Apple has sued on this
registered design or its counterpart, it has ultimately failed. It may or may
not have other intellectual property rights which are infringed. Indeed the same
may be true the other way round for in some countries Samsung are suing Apple.
But none of that has got anything to do with the registered design asserted by
Apple in Europe. Apple's additions to the ordered notice clearly muddied the
water and the message obviously intended to be conveyed by it.