Edible Apple

A few weeks ago, Apple scored a legal victory when a Judge granted its request that Samsung hand over to Apple attorneys 5 unreleased Samsung products as to better compare them to Apple’s own offerings.

At the time, Judge Koh explained,

In particular, the design and appearance of Samsung’s forthcoming products and packaging are directly relevant to Apple’s trademark, trade dress, and design claims. Because these claims are subject to consumer confusion and “ordinary observer” standards, the products themselves and the packaging in which they are sold are likely to be central to any motion for preliminary injunction.

Samsung was given 30 days to hand over the products-in-question and their accompanying packaging and that day is fast approaching – this upcoming Friday to be exact.

Shortly thereafter, in late May, Samsung fired back at Apple with its own request to see unreleased Apple products – the iPhone 5 and the iPad 3 in particular.

Why, you ask?

Well, Samsung clumsily explained it needed to see the aforementioned products “in order to prepare its defense against any preliminary injunction motion brought against Samsung by Apple for trademark or trade dress infringement.”

So basically, Samsung wants to see products that don’t even officially exist because they anticipate Apple using those products as evidence against Samsung in future litigation. That’s a pretty week argument considering that Apple’s original lawsuit only concerns iPhone and iPad iterations currently out on the market.

In any event, Apple has filed a response to Samsung’s request and rightfully calls it what it is – improper harassment.

Apple’s motion reads in part:

Samsung’s Motion to Compel is an improper attempt to harass Apple by demanding production of extremely sensitive trade secrets that have no relevance to Apple’s likelihood of success on its infringement claims or to a preliminary injunction motion. Apple made a compelling showing in its motion to expedite discovery that Apple needs samples of products that Samsung has already announced, distributed, and described, so that Apple can evaluate whether to file a preliminary injunction motion against those products, which look strikingly similar to the distinctive trade dress of Apple’s current products. Samsung has made no such showing about Apple’s future products. Therefore, Samsung’s Motion to Compel should be denied.

Once Apple’s attorneys get a look at Samsung’s products (note that Apple employees will not have access to them), Apple’s legal team will decide if filing a preliminary injunction will be their next move.

As for a potential outcome, well it’s hard to say. As opposed to the Nokia case, Samsung isn’t trying nor is Apple amenable to licensing out their patented technologies. That said, a monetary settlement doesn’t seem all that likely, or sufficient from Apple’s perspective. What Apple really wants is for Samsung to stop misappropriating the look and feel of Apple’s iOS and we imagine Samsung will fight tooth and nail to keep on doing what it’s doing.