Apple has lost an appeal over a UK ruling that said Samsung fondleslabs don't copy iPad's design and the fruity firm better put out an ad that says so.
Cupertino immediately appealed when it not only lost the case but was ordered to take out advertisements and post on its website's front page that Samsung didn't copy the registered design of iPads.
Judge Birss famously said that no one could mistake the Korean company's Galaxy tablets for iPads because they weren't "as cool" as Apple's fondleslabs.
Among the reasons for finding that Galaxy tabs didn't infringe on the physical design patent was the fact that Samsung branding was on the front and back of its tabs and they were thinner than the iPad.
Apple said in its appeal that thinness didn't matter because consumers would expect tablets to get slimmer over time and slab-fondlers would ignore trademarks.
Sir Robin Jacob disagreed in his ruling, saying design patents were protection for what was registered at the time, not future differences. He also said that Apple quite clearly went on about the simplicity of the iPad's design and its lack of ornamentation and company names emblazoned across the product qualify as ornamentation.
Jacob also agreed that Apple had to let folks know that Samsung had been found innocent. He said that the wide publication of Birss' "not as cool" judgement warranted it, as well as the subsequent, and possibly incorrect, decision of a court in Dusseldorf.
Just a week after the UK court originally said Samsung's Galaxy Tab 7.7 didn't infringe on the iPad, the German court issued a ban on it saying that it did. Jacob pointed out that the UK court counts as a Community court and its earlier ruling should have been accepted in Dusseldorf.
"Judge Birss was sitting as a Community design court… So his declaration of non-infringement was binding throughout the Community. It was not for a national court… to interfere with this Community wide jurisdiction and declaration," he said in the ruling.
"If courts around Europe simply say they do not agree with each other and give inconsistent decisions, Europe will be the poorer," he admonished.
Given the wide publicity of the German court, which appeared to overrule the UK court, Jacob said public notices from Apple were necessary.
"What was the ordinary consumer, or the marketing department of a potential Samsung customer to make of it?" he asked. "On the one hand the media said Samsung had won, on the other the media were saying that Apple had a German Europe-wide injunction.
"Real commercial uncertainty was thereby created. A consumer might well think 'I had better not buy a Samsung – maybe it's illegal and if I buy one it may not be supported'."
The only slight respite for Apple is that it doesn't have to plaster the notice over its homepage on its website, Jacob said a link to the notice would be fine. However, the fruity firm will still have to publish the notice in font no smaller than Arial 14pt in the Financial Times, the Daily Mail, The Guardian, Moble Magazine and T3 magazine. ®