No name calling. When someone posts something contrary to every analysis of this case out there, and then claims Apple only sued Samsung because of their falling market share etc, it is more than fair to call them a fanboy. I recognize that this is Android central, but that's no excuse for not using common sense in this.
Where is this fantasy "everyone out there" group of authoritative commentators you refer to? You show one post from a single blog. I matched you with the very person who probably brought that post to your attention (John Gruber) admitting that almost no one wins trade dress suits like these. You can pretend that your "expansive knowledge" of blogosphere posts you haven't cited is somehow superior to my background because "I'm a fanboy" (even though only one of us writes for a blog about one of the companies involved...and it isn't me) but that doesn't actually make what you are saying true.
Here's an idea, rather than just quote tech bloggers with an agenda, why don't we take a look at what a somewhat more objective source:
Wikipedia entry on Trade Dress law
To bring your attention to the most relevant parts, current U.S. Trade Dress laws (since the suit is based in Cupertino) is based on the Lanham Act, and of course recent court precedent based on it. The Lanham Act is specifically "intended to protect consumers from packaging or appearance of products that are designed to imitate other products; to
prevent a consumer from buying one product under the belief that it is another." (emphasis added)
It is NOT designed to say that no one can make a product who's packaging has a similar aesthetic to yours, it's designed to prevent manufacturers or retailers from creating a false impression or association on the buyer that a product is endorsed or otherwise related to a third party. Samsung isn't trying to create the impression that their products are made by Apple, they are simply trying to convey a similar level of quality by using a similar minimalist packaging design. The burden will be on Apple to demonstrate that their packaging is making customer thinks Samsung products are built or endorsed by Apple. It is NOT like copyright law, where all you have to do is demonstrate that someone clearly borrowed from your IP without licensing it. (As a total aside, I'd note that Samsung doesn't provide anywhere near the build quality of Apple products - their products are usually plasticy and cheaply built. Odd thing for a "fanboy" to admit, eh?).
Worse for them, the icon copyright will almost certainly not be able to be included in trade dress portion of the product, as those are related to functionality. Here is the relevant part:
"To gain registration in the Principal Register or common law protection under the Lanham Act, a trade dress must not be “functional.” That is, the configuration of shapes, designs, colors, or materials that make up the trade dress in question must not serve a utility or function outside of creating recognition in the consumer’s mind. For example, even though consumers associated a distinct spring design for wind resistant road signs with a particular company, the spring design was not protectable for trade dress purposes because the springs served the function of withstanding heavy wind conditions."
That means that the UI is going to be utterly off-limits in the Trade Dress claim. That will have to rest on copyright law, and as I already explained in earlier posts Apple has a shot at making a claim on perhaps 2-3 icons, although they risk also losing their copyright on some, since (for example) their icon for the dialer app is clearly based on prior art used by earlier phone manufacturers (if you think "prior art" is a colloquial term I beg you to spend some time looking into copyright law before responding).
Even worse, Apple spends a lot of time making dress claims about the iPad's general design (presumably this is why they included the Galaxy Tab, which otherwise cannot be mistaken for any Apple product). Alas, their generic "it's sort of like our iPad" arguement has been explicitly contradicted by previous rulings. The relevant entry is here:
"However, product design, that is the design or shape of the product itself,
may not be inherently distinctive, and must acquire secondary meaning to be protected." (Emphasis added)
So here's the crux of it: Apple makes sweeping trade dress claims. Their claims are far out of line with current trade dress law. If this isn't dropped prior to pretrial hearings their UI and "general design" claims for trade dress infringement will be thrown out immediately. They will be left having to prove that Samsung's packaging is intended to deceive the consumer into thinking that Samsung products are Apple products (or otherwise sponsored by Apple) and that will be a difficult argument to make, one I'm incline to give them at best a 40% chance of winning initially, and a much lower chance of winning after appeals.
They have a separate set of copyright claims. Samsung clearly didn't literally copy their icons, yet they also clearly took a cue from them. I wouldn't be surprised if Apple wins on 1-3 of them, in particular the use of a yellow flower for their photo icon seems actionable. At the same time, Apple has miserably confused the argument about this because they are attempting to extend trade dress into UI claims, which is against current precedent and will only hurt them in their copyright claims unless they drop the trade dress issue altogether and really focus on that. As I mentioned, while the flower icon seems reasonably legit, the dialer icon (which is the most similar) is actually very problematic, as the green handset icon was used as prior art by several manufacturers before Apple, and they actually risk losing this copyright even as they may win a small judgement for the photo icon.
Finally, they may have some real patent claims. I mentioned previously that I don't know what the inside of a Samsung volume rocker looks like, but if it matches Apple's patent then they clearly have a claim there. There are one or two others that could possible be valid. Of course Samsung has now filed for 18 or so patent infringements in other jurisdictions, and will probably win somewhere between 2-6 of them. So in the end Apple and Samsung are just going to cross-license those patents.
The absolute best case wet-dream version that is possible for Apple would be they can force Samsung to change their packaging and maybe get a small judgement for 1-2 icons that are copyright infringement. We're not even talking 10's of millions there. The worse case for Apple is they get the entire dress trade argument thrown out, they lose several copyrights on icons, and end up with fewer patent infringement claims then Samsung wins, and Apple ends up paying Samsung a small fee for them.
Apple pays their lawyers a LOT of money. I can't imagine that they haven't been advised on the outcomes that can be reasonably expected. Apple is trolling pure and simple here, hoping to shake Samsung into agreeing to provide more parts for Apple products this fall, rather than running into the same problem HTC had last year. I agree with you that Samsung won't actually use those deals as leverage in this case, but that doesn't mean that Samsung will capitulate either. Apple basically has pulled a Pearl Harbor here: they were hoping to cudgel their opponent into giving them what they wanted quickly, but they are now stuck in a larger fight they probably can't win. I expect a settlement to be made and no details to be released publicly.
You can name-call all you want, but legal rulings do not uphold the claims you are making. The fact that you can quote another blog does not make them correct. And if you doubt the wikipedia entry, I encourage you to follow their citations and look at the rulings and acts yourself.
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