The apple barristors were very good (sneaky?) in that they found an expert who's knowledge is limited to icons only and therefore had issues determining the difference based on that alone. Had she been an average schmuck like the rest of us, she could have seen at a glance that the white/silver phone was an iproduct and that all the other phones (which are black) are not.
Unfortunately, the courts are blinded by procedure. The are not allowed to look at the big picture because the filings are written such that they only challenge the sub-items. In other words, it doesn't matter that a reasonable person can determine the difference between a white and black phone. It's presumed that they only look at the screen icons and hence the white/black filtering method is irrelevant and therefore they can be possibly confused.
I don't think anyone I've known would be confused as to whether a phone is made by apple or samsung. They are so distinctly different that even a child could tell them apart ... with or without icons.
Once this lawsuit is said & done and the dust has finally settled, one group will rise above the rest and stake its claim as the clear cut winner ... sadly enough, it'll be the lawyers and their pocketbooks.