After we published our huge breakdown of the insane Apple vs. Samsung jury form yesterday, I got a lot of requests from readers to do a poll on which company would win the case. That was actually our first idea — but with over 700 interdependent questions on the jury form, it's almost impossible to code up a workable poll using off-the-shelf tools, and most people probably wouldn't fill out the whole thing any way.
But to give you just a small taste of what the jury in this historic case is going through, we thought we'd present just one question — something emblematic of the entire case that pulls in all the major facts, evidence, and themes. Turns out it's pretty easy to figure that one out: it's whether or not Samsung's Galaxy S diluted Apple's iPhone trade dress.
A huge part of this case has nothing at all to do with patents
Remember, a huge part of this case has nothing at all to do with patents — it's all about trade dress dilution. Apple says the designs of the iPhone and iPad are meaningful to consumers in the same way as the "Apple" trademark itself, and that Samsung wanted to associate itself with those designs, reducing their overall value. That's a pretty subtle argument that goes well beyond simple "copying," and the jury will spend a long time on it — they have to answer 48 different trade dress dilution questions about Samsung's phones alone, and several more about the Galaxy Tab.
Of course, the jury isn't trying to answer these questions without guidance. After much arguing throughout the trial, Apple and Samsung agreed on a 109-page set of jury instructions that Judge Lucy Koh read aloud in a lengthy session Tuesday morning. Here's what the instructions say the jury should consider when deciding if Samsung products diluted Apple's trade dress — I've bolded the key part of the intro paragraph and the two most important factors:
Dilution by blurring is an association arising from the similarity between the appearance of the defendant's accused products and plaintiff's trade dress that impairs the distinctiveness of the trade dress. Dilution by blurring occurs when a trade dress previously associated with one product loses some of its capacity to identify and distinguish that product. In determining whether the appearance of Samsung's accused products is likely to cause dilution of each asserted Apple trade dress, you may consider all relevant factors, including the following:1. the degree of similarity between Samsung's accused products and Apple's trade dress;
2. the degree of acquired distinctiveness of Apple's trade dress;
3. the extent to which Apple is engaging in substantially exclusive use of the trade dress;
4. the degree of recognition of Apple's trade dress;
5. whether Samsung intended to create an association with Apple's trade dress; and
6. any actual association between Samsung's accused products and Apple's trade dress.
These factors should be weighed by you given the facts and circumstances of the case. For each of Apple's asserted trade dresses, Apple bears the burden of proving by a preponderance of the evidence that the accused Samsung products are likely to dilute the trade dress.
Those last two listed factors are the entire story of the case: Apple focused relentlessly on Samsung's intent to copy the iPhone, while Samsung forcefully reminded the jury during closing arguments that Apple had presented no evidence of anyone actually being confused. Essentially the question is this: is intent to copy more important than actual confusion?
We've picked the original Galaxy S because it's fundamentally the device Apple is most angry about. The jury heard several times that it took Apple years to create the iPhone, but that "it took Samsung three months to copy it," referring to the original Galaxy S. As evidence, Apple presented an internal Samsung memo saying the "unexpected competitor" iPhone had created a "crisis of design" that required the company to change its methods. Apple also showed the jury two different 100+ page documents in which Samsung directly compared the Galaxy S and one of its variants to the iPhone and suggested changes to make them more similar.
Is intent to copy more important than actual confusion?
On the flipside, Samsung icon designer Jeeyuen Wang told the jury that Samsung's three-month effort to create the Galaxy S was an intense experience during which she slept only two to three hours a night, and that she never consulted Apple's designs. And in closing, Samsung attorney Charles Verhoeven was almost sarcastic, telling the jury that Apple "knows, just like you know, that no one is going to be confused while buying a smartphone."
So. You're on the jury. There are eight other people in the room. You've already unanimously decided that Apple's original iPhone trade dress is both protectable and famous, the prerequisites for dilution. You're looking at the instructions above, and considering the factors. Now comes just one moment of truth out of hundreds: did the Galaxy S dilute the iPhone trade dress?