U.S. ITC Judge: Apple-Samsung trade dress infringement case hinges on ‘Cheech and Chong test’

“Apple Inc.’s claim that Samsung Electronics Co. copied the design of the iPhone may hinge on what a U.S. trade judge today described as the ‘Cheech and Chong test,'” Susan Decker reports for Bloomberg. “‘Does it look like it, feel like it, smell like it?’ U.S. International Trade Commission Judge Thomas Pender said at the beginning of Apple’s patent-infringement trial against Samsung, referring to a routine in which the comedy duo identified dog feces.

“Apple contends Samsung’s phones and Galaxy Tab tablet computer copy designs on the look and front face of the iPhone, and they also infringe patents related to the user interface and headset plugs. The Cupertino, California-based iPhone maker is asking the ITC to block imports of Samsung products that violate Apple’s patent rights,” Decker reports. “‘Not content to copy the overall design and interface, Samsung has copied the smallest detail of the iPhone,’ Apple lawyer Harold McElhinny of Morrison & Foerster told the judge in opening arguments today in Washington. ‘Samsung copied our original and iconic design.'”

Decker reports, “When the late Apple founder Steve Jobs unveiled the iPhone in 2007, he warned rivals that it was protected by more than 200 patents, McElhinny said. Apple’s inventions have been displayed in museum shows and even been the subject of a book, he said. ‘Samsung cannot overcome the originality of Apple’s design,’ McElhinny said… Apple has been able to force Samsung to delay the release or alter its Galaxy products in some countries, including Australia and the Netherlands. There’s more at stake in the U.S., because the trade agency — which will issue final decisions in both cases in January and February — has the authority to stop products at the U.S. border.”

Read more in the full article here.

MacDailyNews Take: “Good dog, man.”

As we wrote back in March:

The world is copying the iPhone, outside and inside, because Apple has invested considerable treasure in R&D, marketing, manufacturing, retailing, etc. Copying the iPhone in order to peddle it to the world’s ignorati is theft. The copycats are riding for free on Apple’s considerable innovation and investment.

If courts rule that Samsung, for example, is free to copy the look of the iPhone because of “prior art,” then the courts are wrong. It’s not that the rectangle with rounded corners existed before Steve Jobs pulled the first iPhone from his pocket, it’s that Apple made the rectangle with rounded corners immensely valuable. Likewise for the iOS elements and features that Android has shamelessly stolen… They are ripping off the iPhone in order to sell their own wares. That is theft. Makers of pretend iPhones, iPads, and pretend iOSes are stealing from Apple.

In this case, it’s quite appropriate to ask “What would Steve Jobs do?” Would Steve Jobs slavishly copy another company’s successful products in order to move as many units as he could? No, he wouldn’t. Because Steve Jobs took pride in his work.

Apple’s products came first, then Samsung’s:

Samsung Galaxy and Galaxy Tab Trade Dress Infringement

[Thanks to MacDailyNews Reader “Brawndo Drinker” for the heads up.]


  1. It’s not going to do much good to block import of old Samsung models when they are no longer importing them. Each iteration of Galaxy phones and tablets are being revised to use fewer and fewer of the trade dress disputed design elements. Samsung will dodge the bullet unless Apple gets paid monetary damages on each unit sold.

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