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Cape Town, South Africa – Professor Charles Gielen, an insider in the epic design war between Apple and Samsung, has described the hostile standoff between the two corporate giants as a shape-shifting space for intellectual property laws following the different interpretations of IP law the case has evoked from the courts.

Gielen was the guest speaker at the annual public lecture of the Chair of Intellectual Property Law in Stellenbosch University’s Faculty of Law here recently. Professor Gielen of Groningen University in the Netherlands was also a key member of the litigation team representing Samsung’s side in the design wars when another chapter of the battle was staged in the Netherlands.

The Apple v. Samsung legal battlefield has played out in the United States, United Kingdom, Germany, the Netherlands, Spain, Australia and South Korea.

In the United States, the jury verdict which found patent and some design infringement against Samsung is on appeal. In Germany and Spain, the cases are pending, and the Office of Harmonization for the Internal Market (OHIM), which handles registration of trademarks and designs, is considering a request by Samsung to nullify and to invalidate some of Apple’s designs there.

Gielen describes Apple’s strategy to fight Samsung in various jurisdictions in the world as “a game of chess” and said that Apple’s decision to take on Samsung this way meant that various court decisions allow for “many balls to play with.”

Apple took on Samsung in the areas of design right, copyright and patents. Specifically, Apple’s design right to the tablet (not the iPad) versus Samsung’s 7.7, 10.1 and the 10.1v tablet models.

Apple is also fighting Samsung on the issue of design rights to phones such as the iPhone4 versus some of Samsung Galaxy phones.

However, according to Gielen, Apple may have missed a valuable trick in its evaluation of its arsenal against Samsung.

“Why did Apple not file for trademark registrations?” Gielen said. “Could this not have been a trademark, because shapes can be a trademark. The problem with that is under the rules of the European Court of Justice on 3D marks, it is extremely difficult to get a trademark of a shape unless you show as the Americans call it, secondary meaning … maybe Apple could have had a good chance there, I don’t know.”

Gielen also said that Apple may have, in his opinion, over-filed. “Apple filed registrations for the outward appearance of the iPad but they didn’t invoke them vis a vis Samsung for obvious reasons.”

That’s because Apple registered the design right for the tablet instead of waiting for the iPad, he said. By then registering the iPad design, Apple would have been admitting that the iPad, which looks like the original tablet design but with subtle changes, was above board – that it is okay to come up with a tablet with subtle changes.

“I think Apple over-filed,” says Gielen. “When you’re a big company, you’ve got to ask yourself: are you waiting until you have a product or just filing everything that comes out of your office?”

The court’s decision in the Apple vs Samsung battle centres on what is called an “informed user,” someone who is a middle man between the average consumer and a sectoral expert. However, there have been different legal interpretations of what the so-called informed user perceives in the Apple vs Samsung matter.

As an illustration of the diverse interpretation of the concept, Gielen pointed to the example of the role of trademark on the Samsung tablet.

The judge in the High Court of London ruled: “I find that the presence of writing on the front of the tablet is a feature which the informed user will notice…the fact that the writing happens to be a trademark is irrelevant. It is ornamentation of some sort.”

However, the court of appeal in Dusseldörf, Germany ruled differently. It said: “Design law protects designs not trademark rights from the risk of confusion. Design protection must be seen in isolation from the manufacturer of the specific product sold. … A design does not become a different design … simply because it is offered for sale by another manufacturer under its name,” according to Gielen.

Gielen also touched on the matter of prior art as a consideration by the courts in the legal battle between Samsung and Apple.

“If we take a design like the one of Apple, how should we deal with all the prior computer screens, [and] tablets that were around and how should we deal with that in comparison to the Apple design,” he asked.

Prior art works on the principle of a one-to-one comparison between two products, and is not an evaluation of common elements “because if you look closely to these designs you will see almost all the features of the iPhone,” he explained.

There appears to be no end in sight in the near future with regards the Apple vs Samsung design war given the high stakes involved.

Gielen declined to discuss litigation costs for the legal team he was a part of in defending Samsung in the Netherlands except to say, “these figures are tremendously high…a simple infringement case in the US with a jury costs $2 million. It’s a lot of money.”