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Samsung liable for infringement of the Swatch group trademarks incorporated
Samsung was found liable by the High Court of England and Wales for infringement of the Swatch group trademarks incorporated into the watch counter apps and the names of the apps created by third parties and available on the app store. Samsung galaxy. The case is good news for trademark owners and further clarifies the law on the liability of online intermediaries for trademark violation.
- Members of the Swatch group of companies (including the Tissot, Swatch, Omega and Hamilton brands) will come into contact with a trademark infringement action against Samsung.
- A recovery of the date in relation to watch counter applications that are created by third parties, but that continue to be registered trademarks of the Swatch group and are available in the Samsung Galaxy App Store (SGA).
- Samsung claimed that it had not used Swatch trademarks, but only provided a mechanism for third parties, providing applications for watch counters.
- Samsung’s active role in reviewing two watch counter apps, prior to their publication on the SGA Store, and its commercial advertising about the availability of mutative watch counters signifies that a Samsung is factory using Swatch as trademarks not commercial.
- These discoveries are also essential for the justification of why Samsung could not be trusted in Article 14(1) of the Electronic Commerce Directive, which provides a safe haven for service providers of the information society that have no real knowledge of illegal activities on their platforms.
- The court upheld most of the dual identity trademark infringement claims, because the claims were based on a risk of confusion and unfair advantage, dilution and stain, which Swatch stated “encapsulates the truth of the damage in this case.
Samsung made available 30 watchface apps on the SGA Store, created by third parties that were not Samsung features. These watch counter applications display registered trademarks of the Swatch group in an identical way, no watch counter or no application name, or in a highly similar degree.
However, Samsung has promptly withdrawn the watch counter applications in this way that Swatch notified Samsung of their existence, or in a case pending or in court, the existence of two watch counter applications in the SGA Store was analyzed, before their removal , constituted trade in brand infrastructure.
This decision revolves around two facts of the case and, in particular, the facts that:
- A Samsung requires that the application developers agree with their terms and conditions, or that they prevent you from publishing any applications without a Samsung certifying you.
- A Samsung gets a share in receiving application developers.
- Samsung requires application developers to grant a license to use or apply.
- Samsung performed a technical and content review of all applications submitted to the SGA Store, prior to uploading.
- A Samsung advertises and communicates its product’s ability to move and adapt its smartwatch counters as a fundamental part of its commercial offering.
- In the SGA Store, there is no distinction between Samsung watchface apps and watchface apps created by third parties.
Although Samsung has tried to argue that it had not used two symbols in relation to the relevant products (being watches and smart watches) and such use was merely decorative and descriptive, these allegations are not convincing to the court. Watch counter applications do not simply produce a representation of a watch counter, such as a sign displaying a logo made on a car, it works like a real watch.
The court has little difficulty in finding dual identity trademark infringement in some cases. In the cases in which the marks were not identical, I considered the violation based on the risk of confusion (despite the fact that there was no human evidence of actual confusion and, to the contrary, limited evidence of non-confusion).
The court also considered that the advantage is unfair to a Samsung and the dilution and staining of the registered trademarks of the Swatch group in relation to the watch counter applications that are lowered in significant quantities.
Samsung cannot go through the port insurance provisions of article 14, no. 1, of the directive relating to electronic commerce. His conduct was not of a technical, automatic and passive nature, because a diligent economic operator identified an infringement in the content reviews that he was carrying out to certify the watch-face applications before publication.
A W Moghul
