Cross-Border Injunctions Tested In Apple V. Samsung Saga

Author:Mr Peter L'Ecluse
Profession:Van Bael & Bellis

Two preliminary procedures pitting Apple Inc. ("Apple") against Samsung Electronics Co. Ltd ("Samsung Korea") and its affiliates illustrate interesting aspects of cross-border injunctions in the EU. Both procedures, one before the district court of Düsseldorf (Landesgericht Düsseldorf -the "German Court") and the other before the court of the Hague (Rechtbank 's Gravenhage – the "Dutch Court"), resulted in sharply contrasting decisions.

Before the German Court, Apple had initiated ex parte proceedings against Samsung Korea and Samsung's German affiliate to block the launch of a specific tablet computer (the Samsung Galaxy Tab 10.1) in the EU. Apple claimed that the tablet infringed its registered Community design rights. For this purpose, Apple requested a preliminary injunction against the marketing of the product in any EU Member State, except for The Netherlands.

On 9 August 2011 it was reported that the German Court had granted an EU-wide preliminary injunction against Samsung (excluding The Netherlands). The German Court apparently held that the Galaxy Tab 10.1 infringes Apple's registered Community design 000181607-0001. As a result, the German Court imposed an EU-wide injunction upon Samsung and its German affiliate.

However, after hearing Samsung's arguments during a post-injunction hearing, the German Court limited the scope of its injunction to Germany on procedural grounds. Indeed, the German court held that it did not have jurisdiction over Samsung Korea on the basis of Article 82 of Regulation 6/2002 of 12 December 2001 on Community designs (the "Community Design Regulation"). Still, Samsung's German affiliate continues to be enjoined from selling the Galaxy Tab 10.1 in the EU.

The injunction requested before the German Court excluded the Dutch territory because Apple had already initiated a separate preliminary procedure in The Netherlands against Samsung to prohibit the sale of a range of Samsung tablets and smartphones. The Dutch procedure was based on patents, design...

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