British judge rules that Apple must take out ads plugging Samsung’s Galaxy tablet

Here’s a poser for Apple’s agency TBWA. A British judge has ordered the company to take out ads in several UK national papers, including the Daily Mail, the Guardian and the Financial Times, saying that Samsung’s Galaxy tablet computers didn’t copy the iPad, as Apple claims.

It’s a convoluted tale. Here’s Bloomberg’s report.

Apple Inc. was ordered by a judge to publish a notice on its U.K. website and in British newspapers alerting people to a ruling that Samsung Electronics Co. didn’t copy designs for the iPad.

The notice should outline the July 9 London court decision that Samsung’s Galaxy tablets don’t infringe Apple’s registered designs, Judge Colin Birss said yesterday. It should be posted on Apple’s U.K. home page for six months and published in several newspapers and magazines to correct any impression the South Korea-based company was copying Apple’s product, Birss said.

The order means Apple will have to publish “an advertisement” for Samsung, Richard Hacon, a lawyer for Cupertino, California-based Apple, told the court. “No company likes to refer to a rival on its website.”

Apple is fighting patent lawsuits around the globe against competitors including Google Inc., HTC Corp. and Samsung as it competes for dominance of the smartphone and tablet computer markets. The firms have accused each other of copying designs and technology in their mobile devices. Legal battles about the similarity of Samsung and Apple tablets are being fought in Germany, the Netherlands and the U.S.

Birss said in his July 9 ruling that Samsung’s tablets were unlikely to be confused with the iPad because they are “not as cool.” He declined yesterday to grant Samsung’s bid for an injunction blocking Apple from making public statements that the Galaxy infringed its design rights. “They are entitled to their opinion,” he said.

Apple spokesman Alan Hely didn’t immediately respond to a phone call and e-mail requesting comment on the judge’s order.

“Should Apple continue to make excessive legal claims based on such generic designs, innovation in the industry could be harmed and consumer choice unduly limited,” Samsung said in a statement after the hearing.

“The war between these two companies seems to be escalating even further,” said Colin Fowler, an intellectual property lawyer at London-based Rouse. He said much of the publicity around the July 9 ruling focused on Birss’ comments about Samsung not being as cool.

“From a victory in court they were suddenly on the back foot,” Fowler said in a phone interview. “Getting this order fits in with the context of them trying to restore the balance.”

Comments made by Apple after that ruling unfairly implied that Samsung had copied designs, Samsung’s lawyer Kathryn Pickard said at the hearing. That “caused real commercial harm.”

As well as Apple’s website, the company must pay for notices in the Financial Times, the Daily Mail, Guardian Mobile magazine, and T3, according to a draft copy of the order provided by Samsung’s lawyers.

Apple’s lawyer said the company would appeal the July 9 decision and Judge Birss granted the company permission to take its case to the court of appeal.

Far be it from me to criticise Mr Justice Birss (he’s clearly not a judge to trifle with) but his initial judgement, that the Galaxy wasn’t a copy because it wasn’t “cool” seemed a little odd.

The Court of Appeal hearing should be interesting.

It’s also worth noting that if Apple had shut up after the first hearing it wouldn’t be facing this advertising indignity.

One can whole-heartedly agree with the judge (if this is indeed what he thinks) that tech companies, including Apple, are far too eager to rush to their lawyers when one of their rivals does something, anything. It can reach the heights of absurdity when, as with Google’s purchase of Motorola, the main point of the exercise seems to be to gain control of patents to stop other companies in their tracks.

Great for lawyers, not so good for innovation.

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About Stephen Foster

Stephen is a former editor of Marketing Week and London Evening Standard advertising columnist. He wrote City Republic for Brand Republic and is a partner in communications consultancy The Editorial Partnership.