Apple may need to reveal iPad sales figures to bar Samsung Galaxy Tab
An Australian judge has said Apple may need to break its own policy and reveal regional sales figures of the iPad and iPad 2 to bolster its case to bar sales of the Samsung Galaxy Tab 10.1.
It is Apple's policy to not publicly break out sales figures by region, citing competitive reasons. But if Apple wants to improve its chances of keeping the Samsung Galaxy Tab 10.1 off the market, the company may need to disclose sales figures in the U.S. and the U.K, according to Bloomberg.
Australian Federal Court Justice Annabelle Bennett said Apple may need to prove that sales of the iPad were affected by the Galaxy Tab 10.1 in markets where Samsung's tablet is already available.
But Apple will not be forced to release the figures, the judge said. The company could simply choose to release the figures to help prove to the court the impact of the Galaxy Tab on iPad sales.
"Unless Apple puts on evidence showing the impact in the U.S. or U.K., I can't draw any positive assumptions," Bennett said in Sydney Federal Court on Tuesday.
Samsung took the opportunity to attempt to convince the court that the Galaxy Tab 10.1 will not have an adverse effect on the iPad.
"People want an Android product, so they will buy an Android product," Samsung lawyer Neil Murray said in court. "This is not impacting the sales of Apple."
Apple attorney Steven Burley countered by telling the judge that the "remarkable similarity" between the Galaxy Tab 10.1 and the iPad will take sales away from Apple.
Apple first sued Samsung in April, accusing its rival of copying the look and feel of its popular iPhone and iPad products. Samsung has fired back with its own patent infringement allegations
Last month, a judge decided to bar sales of the Galaxy Tab 10.1 in Australia, forcing Samsung to delay the launch of its tablet down under. Apple's legal action has also found initial success in Germany, where a court also ruled the Galaxy Tab 10.1 could not be sold until the case is settled.
It is Apple's policy to not publicly break out sales figures by region, citing competitive reasons. But if Apple wants to improve its chances of keeping the Samsung Galaxy Tab 10.1 off the market, the company may need to disclose sales figures in the U.S. and the U.K, according to Bloomberg.
Australian Federal Court Justice Annabelle Bennett said Apple may need to prove that sales of the iPad were affected by the Galaxy Tab 10.1 in markets where Samsung's tablet is already available.
But Apple will not be forced to release the figures, the judge said. The company could simply choose to release the figures to help prove to the court the impact of the Galaxy Tab on iPad sales.
"Unless Apple puts on evidence showing the impact in the U.S. or U.K., I can't draw any positive assumptions," Bennett said in Sydney Federal Court on Tuesday.
Samsung took the opportunity to attempt to convince the court that the Galaxy Tab 10.1 will not have an adverse effect on the iPad.
"People want an Android product, so they will buy an Android product," Samsung lawyer Neil Murray said in court. "This is not impacting the sales of Apple."
Apple attorney Steven Burley countered by telling the judge that the "remarkable similarity" between the Galaxy Tab 10.1 and the iPad will take sales away from Apple.
Apple first sued Samsung in April, accusing its rival of copying the look and feel of its popular iPhone and iPad products. Samsung has fired back with its own patent infringement allegations
Last month, a judge decided to bar sales of the Galaxy Tab 10.1 in Australia, forcing Samsung to delay the launch of its tablet down under. Apple's legal action has also found initial success in Germany, where a court also ruled the Galaxy Tab 10.1 could not be sold until the case is settled.
Comments
So she's going on Apple's projections? How does she know how many iPads Apple would have sold if the Samsung tablet wasn't available? You can't just look at Samsung's sales numbers and claim they all would have been Apple's, that's absurd, so why look at Apple's sales numbers? I don't see the logic in this.
Exactly...its impossible to project this in a field so young.
We sell so few Tablets that it does not impact iPad sales.
But Samsung;
"if people want an Android tablet they buy an Android tablet. It does not impact Apple"
This defense should not work since there would not be any Android tablets if they had not copied iPad.
... Australian Federal Court Justice Annabelle Bennett said Apple may need to prove that sales of the iPad were affected by the Galaxy Tab 10.1 in markets where Samsung's tablet is already available. ...
It's a faulty assumption that sales figures would "prove" anything at all. This doesn't sound like a rational request.
Exactly...its impossible to project this in a field so young.
And yet Apple's "trade dress" based claims hinge on this. The point of trade dress is to prevent users from buying a competing product "by mistake" because they thought it was the protected product.
Apple is claiming that the Galaxy Tab is so similar to the iPad that people are purchasing it because of that similarity, as in, they are losing sales of iPads because the customers are picking up a competing product instead.
If Apple's not losing any sales (or at least, can't prove they're losing any sales) then the Tab's design doesn't really impact the iPad at all, so blocking it doesn't really make sense.
It's the common assumption on this site that the tab and honeycomb "Suck" and that no one would buy it unless they "hate" apple, then what does it matter how similar the two look? Is Apple's brand being hurt by the Tab's operation if the only people buying one are people who would not consider an ipad anyway?
That's what the court is asking here. They're asking apple to establish that the Tab has an impact on the iPad, either in sales figures or brand perception. Which is what Trade Dress was meant to protect in the first place.
Fun defense from Samsung:
We sell so few Tablets that it does not impact iPad sales.
But Samsung;
"if people want an Android tablet they buy an Android tablet. It does not impact Apple"
This defense should not work since there would not be any Android tablets if they had not copied iPad.
If this is the case then apple should be able to produce data to support it. That's what the Court is asking.
It's a faulty assumption that sales figures would "prove" anything at all. This doesn't sound like a rational request.
Apple asserts that the design of the Tab mimics the iPad in a way that negatively impacts Apple. The Judge is asking for evidence to back up that claim. How is that not rational?
It is way too early to tell how future sales could suffer if people identify 'crappy knockoffs' with Apple's iPad.
People identify with Apple's look, if a company cops that look and puts out crap. It hurts the brand beyond current sales numbers.
Apple asserts that the design of the Tab mimics the iPad in a way that negatively impacts Apple. The Judge is asking for evidence to back up that claim. How is that not rational?
You're mistaken. They're asking for the injunction to be made permanent. It is not a claim that Samung's copies HAVE hurt Apple, but rather that they COULD. That determination is made on the basis of how closely the copy resembles the original - along with expert testimony.
Apple's historic sales figures are completely irrelevant. They MIGHT be relevant when it gets to the damages portion of the trial, but at this stage, the only issue is whether the copy might cause confusion. Sales figures do not establish that.
Even if Apple sells a billion a year and Samsung only sells 10, that doesn't mean that Samsung's copy is legal - or that Apple doesn't suffer harm.
And yet Apple's "trade dress" based claims hinge on this. The point of trade dress is to prevent users from buying a competing product "by mistake" because they thought it was the protected product.
Apple is claiming that the Galaxy Tab is so similar to the iPad that people are purchasing it because of that similarity, as in, they are losing sales of iPads because the customers are picking up a competing product instead.
If Apple's not losing any sales (or at least, can't prove they're losing any sales) then the Tab's design doesn't really impact the iPad at all, so blocking it doesn't really make sense.
It's the common assumption on this site that the tab and honeycomb "Suck" and that no one would buy it unless they "hate" apple, then what does it matter how similar the two look? Is Apple's brand being hurt by the Tab's operation if the only people buying one are people who would not consider an ipad anyway?
That's what the court is asking here. They're asking apple to establish that the Tab has an impact on the iPad, either in sales figures or brand perception. Which is what Trade Dress was meant to protect in the first place.
All excellent points. I hadn't stopped to think thru the Apple request before your post.
A person picking up a tablet that looks like an iPad, thinking it's crap can effect Apple's sales beyond that single sale. It can hurt their branding. It can effect future sales as well.
And if this is true, Apple should be able to show evidence of this.
But here's the thing: Go to your local tech store and check out how they position tablets.
The ipad is usually on an end display, or at least separated from the other devices. it has big, bold branding all around it, and it's surrounded by a ton of optimized accessories.
The galaxy tab is stuck next to other android (and RIM/HP) devices, often with "universal" accessories beneath it. EVEN IF the device is also set on it's own it has a big "It's Time to Tab" presentation, with Samsung logo's all over the place.
You're mistaken. They're asking for the injunction to be made permanent. It is not a claim that Samung's copies HAVE hurt Apple, but rather that they COULD. That determination is made on the basis of how closely the copy resembles the original - along with expert testimony.
Apple's historic sales figures are completely irrelevant. They MIGHT be relevant when it gets to the damages portion of the trial, but at this stage, the only issue is whether the copy might cause confusion. Sales figures do not establish that.
Even if Apple sells a billion a year and Samsung only sells 10, that doesn't mean that Samsung's copy is legal - or that Apple doesn't suffer harm.
That doesn't change the fact that Apple would have to at least give SOME evidence of this fact beyond "we think it's a possibility."
Apple's sales figures are not irrelevant. The tab is hardly the first device to mimic Apple's design. Apple should have some data somewhere that shows that mimiced devices hurt their sales, if that's what they're claiming.
The point of Trade Dress is to protect sales. If a design isn't hurting their sales, then the trade dress claim becomes a LOT weaker.
EDIT: You don't protect a design "just because it's new OMG" you protect it to keep others from pulling away marketshare from you by copying that design. But if those users wouldn't buy an ipad anyway (as people on this site almost universally declared as the only reason people would buy an android tablet) then they could copy the design EXACTLY and it still wouldn't impact your sales, and there would be no reason to go through the expensive process of protecting said design.
What method of quantification would you prefer?
User response. Announced purpose of item returns ("I bought it because I thought it ran iTunes apps." "I bought it because I thought it was an iPad." etc.).
It's impossible to determine from sales figures.
A person picking up a tablet that looks like an iPad, thinking it's crap can effect Apple's sales beyond that single sale. It can hurt their branding. It can effect future sales as well.
It is way too early to tell how future sales could suffer if people identify 'crappy knockoffs' with Apple's iPad.
People identify with Apple's look, if a company cops that look and puts out crap. It hurts the brand beyond current sales numbers.
I think you underestimate the strength of the Apple brand. Whilst you will get individuals saying their tablet is "Just like an iPad" people do realize that it is not the genuine article. It's like when someone claims their cheap Asian sports-sedan is just like a BMW. We all know the truth.
Apple asserts that the design of the Tab mimics the iPad in a way that negatively impacts Apple. The Judge is asking for evidence to back up that claim. How is that not rational?
Because given the products in question and the amount of time they have been on sale (or more specifically *not* on sale), there is no way the sales figures could prove anything one way or the other. It's also an error to think that even if iPad sales were lower, that this lower figure could in any way be ascribed to the Galaxy Tab alone as opposed to any other cause. It's just faulty all around.
It's tantamount to the judge saying "I'm going to throw that argument out completely," really because she is offering them the opportunity to prove something that they of course can't prove. Which might be her point in requesting it.
Hopefully Apple has other arguments than just the possibility that Galaxy Tab's have actually hurt their sales because it's unlikely they have and unlikely to be provable even if true.
On the one hand, you could argue that every single sale of an ostensibly cloned product is actually a lost sale of the original product, but on the other you could never prove that each person that bought one would actually have bought an iPad if the cloned product wasn't available.
User response. Announced purpose of item returns ("I bought it because I thought it ran iTunes apps." "I bought it because I thought it was an iPad." etc.).
It's impossible to determine from sales figures.
People who are most vocal, however, would be the people who respond this way. It can easily be argued that until you get 100% user response, you can't make any judgment, and even if there are people that respond like this, then how many does it take to make a case based around that?
I would venture to guess that a product like a case for an ipad gets confused for an ipad more often than a Galaxy tab gets confused for one, simply for the packaging alone. You can't claim you thought you bought an iPad when the box says Galaxy tab all over it, and the iPad's name is popular enough that it would be extremely rare for someone to only know what the tablet sort of looks like and make their purchase decision based on that.