June 5 (Bloomberg) -- Apple Inc. asked a Dusseldorf appeals court to ban sales of Samsung Electronics Co.’s Galaxy 10.1N tablet computer, a modified version of the device introduced after the original tablet was blocked in Germany.
Samsung didn’t sufficiently change the device and is still trying to exploit the iPad’s reputation, said Matthias Koch, an Apple lawyer, at a hearing today on Apple’s bid to overturn a lower court decision in February denying the request.
“Samsung added some loudspeakers and made the sides a bit thicker, but that can’t be it,” Koch said before the Dusseldorf Higher Regional Court. “It’s the typical tactic of multinational companies which change just a bit and see how far they can get with that.”
Apple has been fighting tablet competitors in courts across the globe for about a year. While the iPad maker scored a victory in January when a ban on sales of the earlier Galaxy 10.1 model was upheld by the Dusseldorf appeals judges, a U.S. federal appeals court yesterday denied the same request in California. The lower Dusseldorf court refused to ban Samsung’s Galaxy 10.1N, introduced to get around the ban deeming the earlier model too similar to the iPad.
Samsung presented a poll it commissioned finding German consumers don’t buy the Galaxy 10.1N to make others believe they own an iPad. The results counter Apple’s claim the tablet profits off the iPad’s reputation, argued Marcus Grosch, a lawyer for the Suwon, South Korea-based company.
The survey may be of limited value as people hardly admit they buy a cheaper product to make others believe they own a more expansive one, Presiding Judge Wilhelm Berneke said. The court will have to make up its own opinion, he added.
“We will have to balance a lot of aspects, but that’s our job in complicated cases,” said Berneke, noting that the Samsung name is also more prominently displayed on the new model. “We will use plausibility arguments which may sometimes trump empirical arguments.”
At a hearing earlier today Apple asked the same court to extend a sales ban it won against Samsung’s Galaxy 7.7 tablet computer in Germany to other European Union member countries.
Judge Berneke said the Galaxy 7.7 tablet is much closer than the original 10.1 to a European Union design Apple had registered. The court can only grant an EU-wide ban if it finds a violation of the EU design rights and that a Samsung entity in Germany is legally a subsidiary of the Korean company, as defined under EU rules, he said.
In its ruling upholding the original Galaxy 10.1 ban, the court found the Samsung entity is such a subsidiary. The judges are unlikely to ask the European Court of Justice to rule on the issue because Apple filed the bid under emergency procedures requiring swift decisions, he said. If the parties want clearance from the EU’s top court, they can still ask to open regular proceedings in the case, said Berneke.
Today’s cases are: OLG Dusseldorf, I-20 U 35/12 and I-20 U 141/11.
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