Apple v. Samsung - Preliminary Injunction Based on a Registered Community Design

A recent preliminary injunction of the Düsseldorf District Court (LG Düsseldorf - see decision and press release) has generated a lot of excitement in the community (see e.g. here and here and has been extensively discussed by the IP Kat. The Samsung Galaxy Tab 10.1 had (and apparently its predecessor) had to be removed from the Samsung booth at the IFA.

I do not want to enter deeply into the discussion of this case, but rather like to point out two things:
- the PI was based on a registered community design, and not on a patent;
- the chamber 14c of the Düsseldorf district court is responsible for industrial designs and appears to apply a jurisdiction which is somewhat more friendly to the right-owner that the one used by the chambers 4a and 4b responsible for patents.

As reported in a recent post, the preconditions to obtain a PI based on a patent are fairly high. The reason is that unjustified PI's should be avoided at any cost in order to prevent an abuse of this sharp sword and damages at the defendant's side.

My presonal feeling is that this preliminary injunction would not have been granted if it would have been based on a utility patent since the enforcibility was not "beyond any reasonable doubt" and because the community design has, to the best of my knowledge, not yet survived a nullity procedure at the OHIM.

I do not know what prior designs Samsung could find in the short time between the issuance of the PI on August 9 and the hearing on the appeal held on August 25 but I guess that the time was way to short to reliably challange the validity of the design.

A decision on Samsung's appeal is expected for Friday, Sept. 9.

As a matter of fact, it appears to be very advisable to complement a patent portfolio with a good collection of registered design rights wich may have a narrow scope of protection but are clearly superior in terms of enforcibility on a short time scale.

The reason is that the question of infringement can be judged litteraly "at first sigt" - even by a customs officer or a non-specialist judge of a district court, which is clearly not possible for patent rights or utility models.

I am looking forward to see whether the 2nd instance will maintain this difference in the standards for the issuance of PI's between industrial designs and patents.