In the sixth day of the companies’ intellectual property trial in federal court in San Jose, California, Apple used the testimony of a hired expert witness, Kent Van Liere of NERA Economic Consulting, to try to show a likelihood of confusion among consumers, a requirement to demonstrate that Samsung infringes the trademarked look of Apple’s devices.
Van Liere said he concluded from his surveys that 37 to 38 percent of consumers confused the Samsung Fascinate and Galaxy SII Epic 4G smartphones with Apple’s iPhone. He said a “net rate” of 12 percent of consumers confused Samsung’s tablets with Apple’s iPad.
There are a “substantial portion of consumers who are likely to be confused when they see” Samsung’s products, who will think that “they are actually seeing an Apple product,” Van Liere told the court.
Apple and Samsung are the world’s largest makers of the high-end handheld devices that blend the functionality of a phone and a computer. The trial is the first before a U.S. jury in a battle being waged on four continents for dominance in a smartphone market valued by Bloomberg Industries at $219.1 billion. Each company is trying to convince jurors that its rival infringed patents covering designs and technology.
In addition to patent infringement, Cupertino, California- based Apple contends that Samsung’s copying of the look of the iPhone and iPad has diluted the values of its iconic brands.
Apple is using the market survey research to try to show the jury that Samsung has copied its devices so closely that a consumer seeing products made by the South Korean company would actually believe them to be made by Apple. Samsung is trying to demonstrate that there is little actual confusion among consumers between its and Apple’s products.
Under cross-examination by Samsung’s lawyer, William Price, Van Liere acknowledged that the surveys he did for Apple marked the first time he examined consumer confusion in a “post-sale environment” instead of at “point of purchase.”
“You can’t use your survey to show confusion when they bought” the product? Price asked. Van Liere said he can’t.
Price elicited testimony from Van Liere that consumers surveyed about tablet computers saw videos of those products and didn’t touch them.
“You’ve been in cafes, where you see people with Apple computers” and see “that big neon Apple on the top of computer?” Price asked. “You can see that pretty easily?”
Van Liere said that he had seen the logo, and that his surveys didn’t include the views of Apple products Price asked about. He said he reconstructed only the “allegedly infringing” conditions outlined in Apple’s complaint.
“The front of the device and the side view of the device are part of the alleged infringement, not the back,” Van Liere said.
Another paid expert witness called by Apple, industrial designer Peter Bressler, told the jury Aug. 6 about data in a report showing that the most common reason some Best Buy Co. (BBY) customers return Samsung’s Galaxy Tab 10.1 tablet computer is because they thought they had bought the iPad 2.
Bressler, on cross-examination, acknowledged that he was asked during a pretrial deposition in April whether he thought customers purchasing products are confused between Apple and Samsung devices and he said he didn’t know.
Samsung, based in Suwon, South Korea, countersued and will present claims that Apple is infringing its patents.
The case is Apple Inc. v. Samsung Electronics Co. Ltd., 11- cv-01846, U.S. District Court, Northern District of California (San Jose).
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