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.
So it's all about "the brand" and marketing, not that the BMW is actually a better car than the "cheap Asian sports-sedan"?
Nor can you judge what one group will be based on the tastes of another. Maybe Aussies think Android is the way to go while the dumb yanks are all about supporting their home boy
Not necessarily so. Android smartphones only recently (in the last month or so, if I recall correctly) passed Apple's marketshare down here.
question is how many were sold, lets say total sales for 3 months before the galaxy tab was released. Than compare to how many were sold 3 in the next 3 months
Useless.
In order for that to have ANY value at all, you'd have to correct for:
- Availability (iPad had very limited availability after launch of new models). In addition, Tab was not available in as many places as iPad, particularly right after launch.
- Seasonality (Oct-Dec sales are very different than Jan-Mar sales)
- Y/Y growth rates - the market is growing significantly
- Pricing
- Other factors
Then you have the problem of figuring out the cause. If iPad sales are impacted, how much of that is due to the fact that there is simply another product in the market and how much due to the fact that the Tab is a close copy of the appearance of the iPad? For example, if someone released a tablet that was better in every way than the iPad and it took away 80% of the iPad's sales overnight, that wouldn't be illegal and there's nothing wrong with it. OTOH, if someone releases a product that's an exact copy of the iPad in appearance and is called the iRad and has a box with a big pear on it, but the product works poorly, if at all, is missing many features,yet costs exactly the same as the iPad, that product is infringing - even if it only takes 1% of Apple's sales away. Sales figures alone don't tell you a thing.
Simply looking at the raw data is meaningless. Even after greatly massaging the data to consider the above factors (and more), it would probably be difficult to pick out the effect since I don't think ANYONE is suggesting that Tab took away 50% of iPad sales.
Far better to simply have an expert testify on the risk of confusion based on appearance and so on.
Don't think this will go anywhere, firstly Apple will point out that sales in other countries have no bearing on sales in Australia. If the judge says "what are the sales in the UK", Apple can say, why the UK, why not Vatican city? Then you have to get to Apple and Samsungs marketing stratergy in different countries. Add to that, Samsung will have to give it's sales figures which seem to be piss poor and then we get back to point 1 which is "how can you judge a country with different law's, marketing strategeys and prices with australia". If the judge insistes on this, Apple will apeal and win because what the judge is saying is "we are no longer an independent country"
In order for that to have ANY value at all, you'd have to correct for:
- Availability (iPad had very limited availability after launch of new models). In addition, Tab was not available in as many places as iPad, particularly right after launch.
- Seasonality (Oct-Dec sales are very different than Jan-Mar sales)
- Y/Y growth rates - the market is growing significantly
- Pricing
- Other factors
Which the judge could also request. The judge is asking for DATA to back up the claims. As noted by others, Apple making a trade dress suit so early is highly unusual as they have little evidence to back up their claim.
Quote:
Then you have the problem of figuring out the cause. If iPad sales are impacted, how much of that is due to the fact that there is simply another product in the market and how much due to the fact that the Tab is a close copy of the appearance of the iPad? For example, if someone released a tablet that was better in every way than the iPad and it took away 80% of the iPad's sales overnight, that wouldn't be illegal and there's nothing wrong with it.
The lack of evidence anywhere is part of the problem (see above)
Quote:
OTOH, if someone releases a product that's an exact copy of the iPad in appearance and is called the iRad and has a box with a big pear on it, but the product works poorly, if at all, is missing many features,yet costs exactly the same as the iPad, that product is infringing - even if it only takes 1% of Apple's sales away. Sales figures alone don't tell you a thing.
And this didn't happen. Samsung never asserted that this was an "ipad"
Quote:
Simply looking at the raw data is meaningless. Even after greatly massaging the data to consider the above factors (and more), it would probably be difficult to pick out the effect since I don't think ANYONE is suggesting that Tab took away 50% of iPad sales.
Raw data alone is meaningless, raw data as part of a case is vital.
Quote:
Far better to simply have an expert testify on the risk of confusion based on appearance and so on.
And how is such an expert selected? How is his opinion "valid" when there is NO evidence presented that this confusion has any meaningful impact?
You're basically saying that it's ok for a company to block a competitor because people might be too stupid to read. Without any data, statistics, or even historical trend data, that's what the argument is boiling down to.
It's up to apple to prove that Samsung's device will confuse users, and that the confusion hurts their own sales and brand image. Trade dress is NOT a patent.
Don't think this will go anywhere, firstly Apple will point out that sales in other countries have no bearing on sales in Australia. If the judge says "what are the sales in the UK", Apple can say, why the UK, why not Vatican city? Then you have to get to Apple and Samsungs marketing stratergy in different countries. Add to that, Samsung will have to give it's sales figures which seem to be piss poor and then we get back to point 1 which is "how can you judge a country with different law's, marketing strategeys and prices with australia". If the judge insistes on this, Apple will apeal and win because what the judge is saying is "we are no longer an independent country"
Good luck with that.
the reason they said the US and UK is because those are two regions where the device is already being sold.
The rest of your argument shows a lack of understanding for WHY sales figures are important when it comes to trade dress.
They're not counterfeit goods. Samsung isn't claiming they are ipads, or running iOS. As other's have pointed out, these lawsuits are often brought against companies only AFTER the pattern has been established.
Quote:
Originally Posted by jfanning
they aren't selling a counterfeit item, the ones I have seen in the shop have the samsung logo on the back, that alone means they are not counterfeit
Quote:
Originally Posted by nikon133
Counterfeit? Really?
The Samsung products obviously aren't counterfeit but apply the same argument the judge made to counterfeit products. Would you only ban sales of counterfeit items if they were shown to be taking sales away from the original? No, you'd ban them based on the fact they are ripping off the designs and convincing people they are buying the original or something as good as.
People who are uninformed about technology don't know what a Tab or iPad is, they just see two black screens that look very similar and with Samsung's own UI, feel very similar too. The Bada UI is clearly designed to mimic the iPhone icon layout exactly with the dock at the bottom (skip to 2:07):
Stock Android isn't like this and Windows Phone isn't like this. It's not just the one product either, their phones, tablets and laptops are being designed to look and work as close as they can to Apple's products without branding them as Apple products (which would be crossing the line into counterfeit territory).
Question is, how few differences do they need to make for it be legal? If I open a chain of restaurants called WcDonalds and colour the logo orange, is that enough to be unique? If you look at the similarities and the market, you can see clearly what's going on and this is the case with Samsung. If it was one product or even just the hardware, it's not so bad, but it's not. It's the software and at least 3 product lines. That shows they have a clear intent to copy Apple's designs.
The Samsung products obviously aren't counterfeit but apply the same argument the judge made to counterfeit products. Would you only ban sales of counterfeit items if they were shown to be taking sales away from the original? No, you'd ban them based on the fact they are ripping off the designs and convincing people they are buying the original or something as good as.
People who are uninformed about technology don't know what a Tab or iPad is, they just see two black screens that look very similar and with Samsung's own UI, feel very similar too. The Bada UI is clearly designed to mimic the iPhone icon layout exactly with the dock at the bottom (skip to 2:07):
Stock Android isn't like this and Windows Phone isn't like this. It's not just the one product either, their phones, tablets and laptops are being designed to look and work as close as they can to Apple's products without branding them as Apple products (which would be crossing the line into counterfeit territory).
Question is, how few differences do they need to make for it be legal? If I open a chain of restaurants called WcDonalds and colour the logo orange, is that enough to be unique? If you look at the similarities and the market, you can see clearly what's going on and this is the case with Samsung. If it was one product or even just the hardware, it's not so bad, but it's not. It's the software and at least 3 product lines. That shows they have a clear intent to copy Apple's designs.
And yet Apple's not going after Bada, why? I agree touchwiz is too far, but Apple using using trade dress against the XOOM which is (not only) stock android, but looks nothing like an ipad2 or even a galaxy tab. There are very valid arguments for why Apple is going after samsung, but Apple's also going after others with the same charges, and the arguments defending apple's actions break down because of how many people they're suing and how DIFFERENT those products are from eachother, let alone iOS devices.
As others mentioned before, the type of lawsuit Apple is trying with trade dress usually only occurs after there is data to prove confusion.
The Samsung products obviously aren't counterfeit but apply the same argument the judge made to counterfeit products. Would you only ban sales of counterfeit items if they were shown to be taking sales away from the original? No, you'd ban them based on the fact they are ripping off the designs and convincing people they are buying the original or something as good as.
No, a counterfeit item is much different to this case. A counterfeit item looks the same, has the same branding. An iPad and the Tab look similar, they certainly don't look the same (much like a Toyota Yaris, and a Hyundia Getz look similar), and they don't have the same branding. There is no way you can apply counterfeiting rules to this.
Quote:
Originally Posted by Marvin
People who are uninformed about technology don't know what a Tab or iPad is, they just see two black screens that look very similar and with Samsung's own UI, feel very similar too. The Bada UI is clearly designed to mimic the iPhone icon layout exactly with the dock at the bottom (skip to 2:07):
You may as well say that people are too stupid to be purchasing products and must be protected from their own stupidity. If you are going to spend close to a $1000 on a item, do some research into it first. How is this any different to drills that look similar, or cars that look similar, or any of the millions of products available now that similar, I'll let you know, nothing. If people have gone into a shop intending to purchase something and the shop has misrepresented it, then there are consumer laws to protect them. At this rate we may as well ban all other brands of laptops as they all have a keyboard and a screen just like Apple.
Quote:
Originally Posted by Marvin
Question is, how few differences do they need to make for it be legal? If I open a chain of restaurants called WcDonalds and colour the logo orange, is that enough to be unique? If you look at the similarities and the market, you can see clearly what's going on and this is the case with Samsung. If it was one product or even just the hardware, it's not so bad, but it's not. It's the software and at least 3 product lines. That shows they have a clear intent to copy Apple's designs.
There is only one way a building a rectangle tablet, or phone, that is in the shape of rectangle. These cases have already been tested in European courts, and where there is only one way of designing a item you can't trademark that design. You logo argument is clearly much different, you can easily design you logo differently, and you can't give you restaurant a similar name.
Comments
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.
So it's all about "the brand" and marketing, not that the BMW is actually a better car than the "cheap Asian sports-sedan"?
Nor can you judge what one group will be based on the tastes of another. Maybe Aussies think Android is the way to go while the dumb yanks are all about supporting their home boy
Not necessarily so. Android smartphones only recently (in the last month or so, if I recall correctly) passed Apple's marketshare down here.
question is how many were sold, lets say total sales for 3 months before the galaxy tab was released. Than compare to how many were sold 3 in the next 3 months
Useless.
In order for that to have ANY value at all, you'd have to correct for:
- Availability (iPad had very limited availability after launch of new models). In addition, Tab was not available in as many places as iPad, particularly right after launch.
- Seasonality (Oct-Dec sales are very different than Jan-Mar sales)
- Y/Y growth rates - the market is growing significantly
- Pricing
- Other factors
Then you have the problem of figuring out the cause. If iPad sales are impacted, how much of that is due to the fact that there is simply another product in the market and how much due to the fact that the Tab is a close copy of the appearance of the iPad? For example, if someone released a tablet that was better in every way than the iPad and it took away 80% of the iPad's sales overnight, that wouldn't be illegal and there's nothing wrong with it. OTOH, if someone releases a product that's an exact copy of the iPad in appearance and is called the iRad and has a box with a big pear on it, but the product works poorly, if at all, is missing many features,yet costs exactly the same as the iPad, that product is infringing - even if it only takes 1% of Apple's sales away. Sales figures alone don't tell you a thing.
Simply looking at the raw data is meaningless. Even after greatly massaging the data to consider the above factors (and more), it would probably be difficult to pick out the effect since I don't think ANYONE is suggesting that Tab took away 50% of iPad sales.
Far better to simply have an expert testify on the risk of confusion based on appearance and so on.
Good luck with that.
Useless.
In order for that to have ANY value at all, you'd have to correct for:
- Availability (iPad had very limited availability after launch of new models). In addition, Tab was not available in as many places as iPad, particularly right after launch.
- Seasonality (Oct-Dec sales are very different than Jan-Mar sales)
- Y/Y growth rates - the market is growing significantly
- Pricing
- Other factors
Which the judge could also request. The judge is asking for DATA to back up the claims. As noted by others, Apple making a trade dress suit so early is highly unusual as they have little evidence to back up their claim.
Then you have the problem of figuring out the cause. If iPad sales are impacted, how much of that is due to the fact that there is simply another product in the market and how much due to the fact that the Tab is a close copy of the appearance of the iPad? For example, if someone released a tablet that was better in every way than the iPad and it took away 80% of the iPad's sales overnight, that wouldn't be illegal and there's nothing wrong with it.
The lack of evidence anywhere is part of the problem (see above)
OTOH, if someone releases a product that's an exact copy of the iPad in appearance and is called the iRad and has a box with a big pear on it, but the product works poorly, if at all, is missing many features,yet costs exactly the same as the iPad, that product is infringing - even if it only takes 1% of Apple's sales away. Sales figures alone don't tell you a thing.
And this didn't happen. Samsung never asserted that this was an "ipad"
Simply looking at the raw data is meaningless. Even after greatly massaging the data to consider the above factors (and more), it would probably be difficult to pick out the effect since I don't think ANYONE is suggesting that Tab took away 50% of iPad sales.
Raw data alone is meaningless, raw data as part of a case is vital.
Far better to simply have an expert testify on the risk of confusion based on appearance and so on.
And how is such an expert selected? How is his opinion "valid" when there is NO evidence presented that this confusion has any meaningful impact?
You're basically saying that it's ok for a company to block a competitor because people might be too stupid to read. Without any data, statistics, or even historical trend data, that's what the argument is boiling down to.
It's up to apple to prove that Samsung's device will confuse users, and that the confusion hurts their own sales and brand image. Trade dress is NOT a patent.
Don't think this will go anywhere, firstly Apple will point out that sales in other countries have no bearing on sales in Australia. If the judge says "what are the sales in the UK", Apple can say, why the UK, why not Vatican city? Then you have to get to Apple and Samsungs marketing stratergy in different countries. Add to that, Samsung will have to give it's sales figures which seem to be piss poor and then we get back to point 1 which is "how can you judge a country with different law's, marketing strategeys and prices with australia". If the judge insistes on this, Apple will apeal and win because what the judge is saying is "we are no longer an independent country"
Good luck with that.
the reason they said the US and UK is because those are two regions where the device is already being sold.
The rest of your argument shows a lack of understanding for WHY sales figures are important when it comes to trade dress.
They're not counterfeit goods. Samsung isn't claiming they are ipads, or running iOS. As other's have pointed out, these lawsuits are often brought against companies only AFTER the pattern has been established.
they aren't selling a counterfeit item, the ones I have seen in the shop have the samsung logo on the back, that alone means they are not counterfeit
Counterfeit? Really?
The Samsung products obviously aren't counterfeit but apply the same argument the judge made to counterfeit products. Would you only ban sales of counterfeit items if they were shown to be taking sales away from the original? No, you'd ban them based on the fact they are ripping off the designs and convincing people they are buying the original or something as good as.
People who are uninformed about technology don't know what a Tab or iPad is, they just see two black screens that look very similar and with Samsung's own UI, feel very similar too. The Bada UI is clearly designed to mimic the iPhone icon layout exactly with the dock at the bottom (skip to 2:07):
http://www.youtube.com/watch?v=Kcz65Garcco
Stock Android isn't like this and Windows Phone isn't like this. It's not just the one product either, their phones, tablets and laptops are being designed to look and work as close as they can to Apple's products without branding them as Apple products (which would be crossing the line into counterfeit territory).
Question is, how few differences do they need to make for it be legal? If I open a chain of restaurants called WcDonalds and colour the logo orange, is that enough to be unique? If you look at the similarities and the market, you can see clearly what's going on and this is the case with Samsung. If it was one product or even just the hardware, it's not so bad, but it's not. It's the software and at least 3 product lines. That shows they have a clear intent to copy Apple's designs.
The Samsung products obviously aren't counterfeit but apply the same argument the judge made to counterfeit products. Would you only ban sales of counterfeit items if they were shown to be taking sales away from the original? No, you'd ban them based on the fact they are ripping off the designs and convincing people they are buying the original or something as good as.
People who are uninformed about technology don't know what a Tab or iPad is, they just see two black screens that look very similar and with Samsung's own UI, feel very similar too. The Bada UI is clearly designed to mimic the iPhone icon layout exactly with the dock at the bottom (skip to 2:07):
http://www.youtube.com/watch?v=Kcz65Garcco
Stock Android isn't like this and Windows Phone isn't like this. It's not just the one product either, their phones, tablets and laptops are being designed to look and work as close as they can to Apple's products without branding them as Apple products (which would be crossing the line into counterfeit territory).
Question is, how few differences do they need to make for it be legal? If I open a chain of restaurants called WcDonalds and colour the logo orange, is that enough to be unique? If you look at the similarities and the market, you can see clearly what's going on and this is the case with Samsung. If it was one product or even just the hardware, it's not so bad, but it's not. It's the software and at least 3 product lines. That shows they have a clear intent to copy Apple's designs.
And yet Apple's not going after Bada, why? I agree touchwiz is too far, but Apple using using trade dress against the XOOM which is (not only) stock android, but looks nothing like an ipad2 or even a galaxy tab. There are very valid arguments for why Apple is going after samsung, but Apple's also going after others with the same charges, and the arguments defending apple's actions break down because of how many people they're suing and how DIFFERENT those products are from eachother, let alone iOS devices.
As others mentioned before, the type of lawsuit Apple is trying with trade dress usually only occurs after there is data to prove confusion.
The Samsung products obviously aren't counterfeit but apply the same argument the judge made to counterfeit products. Would you only ban sales of counterfeit items if they were shown to be taking sales away from the original? No, you'd ban them based on the fact they are ripping off the designs and convincing people they are buying the original or something as good as.
No, a counterfeit item is much different to this case. A counterfeit item looks the same, has the same branding. An iPad and the Tab look similar, they certainly don't look the same (much like a Toyota Yaris, and a Hyundia Getz look similar), and they don't have the same branding. There is no way you can apply counterfeiting rules to this.
People who are uninformed about technology don't know what a Tab or iPad is, they just see two black screens that look very similar and with Samsung's own UI, feel very similar too. The Bada UI is clearly designed to mimic the iPhone icon layout exactly with the dock at the bottom (skip to 2:07):
You may as well say that people are too stupid to be purchasing products and must be protected from their own stupidity. If you are going to spend close to a $1000 on a item, do some research into it first. How is this any different to drills that look similar, or cars that look similar, or any of the millions of products available now that similar, I'll let you know, nothing. If people have gone into a shop intending to purchase something and the shop has misrepresented it, then there are consumer laws to protect them. At this rate we may as well ban all other brands of laptops as they all have a keyboard and a screen just like Apple.
Question is, how few differences do they need to make for it be legal? If I open a chain of restaurants called WcDonalds and colour the logo orange, is that enough to be unique? If you look at the similarities and the market, you can see clearly what's going on and this is the case with Samsung. If it was one product or even just the hardware, it's not so bad, but it's not. It's the software and at least 3 product lines. That shows they have a clear intent to copy Apple's designs.
There is only one way a building a rectangle tablet, or phone, that is in the shape of rectangle. These cases have already been tested in European courts, and where there is only one way of designing a item you can't trademark that design. You logo argument is clearly much different, you can easily design you logo differently, and you can't give you restaurant a similar name.