Jacob attacks German court in rejecting Apple’s UK design appeal

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2026

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Cookies Settings

Jacob attacks German court in rejecting Apple’s UK design appeal

Sir Robin Jacob, sitting in the Court of Appeal in London, has issued a lengthy criticism of the Düsseldorf court as part of a ruling today against Apple

The Court of Appeal's ruling rejected an appeal by Apple against a finding of non-infringement by the High Court in July, claiming infringement of Apple registered designs by Samsung's Galaxy tablets.

The High Court ruling achieved notoriety because Judge Colin Birss said the Galaxy was not close enough to the Apple designs as it was not as "cool" given the latter's "extreme simplicity" of design.

Jacob, giving the judgment at the Court of Appeal at the invitation of Lord Justice Longmore, spent eight paragraphs criticising a ruling on July 24 by the German Court of Appeal. That ruling had granted a pan-European interim injunction against Samsung over the Galaxy 7.7, based on the same Community design rights.

Jacob criticised the German court's grounds for jurisdiction, the basis for an interim injunction and its reasoning on the merits.

He pointed out that no German court was "first seized" of a claim for declaration of non-infringement, and indeed Apple later withdrew its claim for infringement in Germany. As the High Court in England was sitting as a Community court, its decision of non-infringement was binding throughout the European Community. And that has now been upheld on appeal.

"The Oberlandesgericht apparently also thought it had jurisdiction because the party before it was SEC [Samsung] whereas the party before the English court was SEC's UK subsidiary. With great respect that is quite unrealistic commercially - especially as I shall recount below, Apple at least took the view that SEC would be liable for the subsidiary's actions. They were all one 'undertaking'. I use the word of EU law for this sort of situation," Jacob wrote.

As to the Court's reasoning, Jacob said it was wrong to say the decision in the PepsiCo design case was "outdated" as it had since been confirmed on appeal at the General Court. And it misunderstood Judge Birss's points about trade marks in the case.

In conclusion, Jacob made a point he has frequently returned to in recent years: that European courts should listen to each other. If they don't, and simply make inconsistent decisions without explanation about why they disagree – as the Düsseldorf court did – then Europe will have to wait for a common IP court. Which could still take a long time.

Barristers Henry Carr and Anna Edwards-Stuart and law firm Simmons & Simmons acted for Samsung. Apple was represented by barristers Lord Grabiner, Michael Silverleaf and Richard Hacon and law firm Freshfields Bruckhaus Deringer.

You can read the decision here.

more from across site and SHARED ros bottom lb

More from across our site

The Unitary Patent has passed 100,000 registrations, but new data raises the question of whether 30% uptake is a ceiling or a staging post for further growth, say Michael Nielsen and Darren Smyth of EIP and Andrew Samm at Patently
The new generation of in-house IP leaders want commercial judgment, accessibility and flexibility, with AI raising expectations around both fees and delivery
The firm launched a San Diego office earlier this month, but California investment and expansion is far from complete
The industry’s response to AI requires an unfamiliar ingredient as firms battle to shape their futures
The firm is looking beyond replacing recently departed talent, betting instead on senior leaders to strengthen and expand its patent litigation platform
Olga Partington, director in Sterne Kessler’s biotechnology and chemical practice group, shares why a patent's vulnerability peaks when it is young, rather than when it is most valuable, under the PTAB's new framework
IP experts gathered in San Francisco last week to discuss the changing global SEP landscape and new licensing models for AI infrastructure
SKW Schwarz partner Daniel Kendziur explains how new green claims rules are changing his workload and bringing him into direct contact with marketing, PR and government affairs teams
The government is targeting earlier resolution of SEP disputes while ruling out a standalone IPEC rate determination track and restrictions on injunctions
Ana Castedo, who brings a strong focus on patent litigation, will help build the firm’s IP litigation offering in Madrid
Gift this article