Apple's Argument Regarding Irreparable Harm from Infingement of D'667 - Part I

 Apple claimed it had suffered two types of irreparable harm as a result of Samsung’s infringement of D’677: loss of consumer goodwill and loss of market share.  Due to the length of this argument, this blog series has been split into two parts; today’s post examines Apple’s argument about loss of consumer goodwill.

Apple’s loss of goodwill argument surrounded the erosion of design distinctiveness. First, Apple’s D’677 and the iPhone design were distinctive; the iPhone’s immense commercial success and extensive design-centric advertising (ads that focused on product design) created consumer goodwill in the design of the iPhone.
Second, Samsung infringed Apple’s D’677 patent by marketing and selling phones that were substantially similar to the design of Apple’s iPhone (embodiment of D’677). Third, Samsung’s selling and marketing of such substantially similarly designed smart phones caused Apple to lose design distinctivenessalso called erosion or dilution of design distinctiveness. Fourth, this loss of design distinctiveness resulted in a loss of consumer goodwill for Apple. This loss of goodwill argument hinged upon Apple’s claim that product design was a determinative factor to consumers and their purchasing decisions. Apple summarized its argument as, “Samsung’s sale of products that mimic Apple’s designs threatens to erode the value of the designs and attenuate the hard-won link in the public’s mind between the designs and Apple” (Id. at 31).
However, there wasn’t much evidence to support this argument in the actual motion (other than sales statistics and descriptions of advertising). Apple made a very theoretical (not to mention, circular) argument, but it didn’t present much evidentiary supportat least not in the actual motion. Even if Apple presented more concrete evidence in its declarations and reply, this evidence must not have been very substantial as indicated by the district court’s response.
In its order denying Apple’s motion, the court also referenced an Apple argument about brand dilution (see note below). The gist of this brand dilution argument is that Samsung’s D’677 infringement also caused erosion of Apple’s brand distinctiveness, because “the design features of its products were closely intertwined with the Apple brand, and that Samsung’s products necessarily erode the distinctiveness of Apple’s brand” (Court Order Denying Apple’s Motion for Preliminary Injunction at 28, 29).
This brand dilution also resulted in Apple’s loss of consumer goodwill and irreparable harm. Like the design dilution argument, this brand dilution argument also relied on Apple’s claim that product design was important to consumers. Apple also argued that the dilution of its brand’s distinctiveness harmed the company, because the dilution threatened to diminish the value of Apple’s brand. (Although, that sort of argument really just restates the meaning of dilution in trademark law.)
**In the district court’s eventual denial of this motion, the court mentioned that Apple had made a brand dilution type argument to support irreparable harm in which it rejected. The district court even cited that this brand dilution argument was made on page 27 of Apple’s motion. However, I have scoured the public version of Apple’s motion, and I cannot find any mention of this argument. This brand dilution argument must have been made in a sealed version of the brief, a supporting declaration or reply brief, because I cannot find it in the public version of Apple’s brief online. **
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