SAN JOSE – A marketing expert testifying for Apple said he believes Samsung blurred and tried to copy the iPhone and iPad trade dress. Apple entered into evidence a Samsung internal report saying it needed to enhance its product’s design so they stand out in the market as Apple’s products do.
Trade dress refers to design elements characteristics of a product. Apple registered such elements with the U.S. Patent and Trademark Office. “The impact of copying trade dress has a substantial impact on the investment Apple has made and its marketing strategy—it diminishes it,” said Russell S. Winer, a professor of marketing at the Stern School of Business at New York University.
“I think Apple’s trade dresses are among the most distinctive in the world and have a very high degree of recognition particularly in the U.S.,” said Winer. “The distinctiveness of the Apple trade dress will be blurred by competitors that emulate it—there’s just no doubt about it,” he said.
Winer said he viewed Samsung documents that compared the company’s handsets to the iPhone. The documents “led me to believe there was copying going on,” he said.
A 177-page Samsung report called “Touch Portfolio Rollout Strategy,” dated December 17, 2008 said Apple “sets the standard for screen-centric design.”
The report dedicated one chapter to an analysis of the iPhone and others to a look at Samsung’s products and global market sectors. It included a survey of 3,601 users globally as well as focus groups and in-depth user interviews. It drew several conclusions including that Samsung phones need to adopt a consistent user interface on par or superior to the iPhone.
“People don’t think the industrial designs of Samsung touch phones are groundbreaking, nothing stands out as something consumers have never seen,” the Samsung report said. “Consumers feel they look too plain, too extreme or too much like other Samsung phones,” it said.
“They are viewing Apple as a target to emulate,” said Winer. “My conclusion is they will use this analysis to improve their own products,” he added, concluding the Samsung Galaxy S dilutes Apple’s trade dress.
Under cross-examination, Winer admitted he conducted no surveys to prepare for his testimony and has no first hand evidence of users being confused between Samsung and Apple phones. He testified under deposition he knew of one instance at Best Buy where a customer exchanged a Galaxy Tab for an iPad because of such confusion.
Samsung attorney Charles Verhoeven turned on a Samsung Galaxy Tab 10.1, alleged as infringing iPad patents and trade dress. It flashed the Samsung name for several seconds before going to an unlock and then a home page. He then choose a button to go to an application page to get to a screen allegedly infringing Apple trade dress.
Winer said Apple is paying him $625/hour or about $50,000 to date for his testimony.
Separately, Apple commissioned a report that said most consumers (from 57.3 to 75.2 percent) could pick out iPhones and iPads as Apple products even when icons were blurred and a single design element such as an iPhone bezel or iPad home button were blocked out.
On cross-examination, Samsung suggested the percentages of consumers who knew the products were from Apple were much lower (from 13.2 to 21.9 percent) when the results were factored for a July 2010 date which it claimed is the legal standard Apple needs to meet.
“That calculation wouldn’t have made any sense,” said Hal Poret, a senior vice president for ORC International, a market research firm that conducted the online survey of about 500 consumers in June 2011.
“The large majority of [consumers] made the association [of the products with Apple] before the Samsung tablets [were released], and the minortiy made the association after the Samsung tablets [shipped],” Poret said.