Did anyone really confuse Samsung products for Apple's?

Apple is claiming that Samusung copied the iPhone and iPad wholesale. But is there any evidence that anyone was actually confused between Apple's products and Samsung's?

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I have a certain fondness for courtroom drama.

From the novels of Scott Turow to the pulsating shenanigans of my selfless mentor, Alan Shore of "Boston Legal," the posing and the revelations can often be far more exciting than anything in Henry James or E. L. James.

But though the excitement of seeing excluded evidence being slipped into journalists' hands is precisely the sort of thing the great Shore would have done with innocent eyes and guilty lips, one aspect of the case confuses me.

It gnaws at me like the tags on an H&M shirt. It is this: Is there any evidence that any real human being bought a Samsung Galaxy Tab rather than an iPad because they thought they were the same?

I did hear that Apple's Phil Schiller declared in court his shock at seeing some Samsung designs: "My first thought was, 'wow they've done it again, and they're just going to copy our whole product line.'"

He also said: "Customers can get confused on whose product is whose." (There were allegedly reports of some people returning Galaxy Tabs at Best Buy because they -- somehow -- thought they were iPads. Not that this was any obvious stampede of complaint.)

And yet, despite this alleged potential for confusion, Apple has 68 percent of the tablet market. The name "iPad" has become generic. Apple's large cut seems to be threatened more by cheaper devices such as the Kindle Fire than by Samsung's alleged fine copies.

As for phones, Apple created a very pleasing chart that showed how closely Samsung's phones seemed to have followed Apple's fine designs. The "before" looked Barney Rubble-ish in comparison to the "after."

But while the jury will, sadly, be mired in considering the virtues of tiny but significant points of design, I fear the drama might suddenly disappear from the courtroom as the mold of legalese takes hold.

Though Apple's claim that it never does consumer research was rather undermined by Schiller's revelation that, well, Apple does consumer research, isn't this one moment when the consumers themselves might help Apple more than any lawyer?

How very Alan Shore, how very Erin Brockovich it would be if Apple could parade real people who would tearfully relate how they accidentally bought a Samsung instead of something from Cupertino.

"It looked just the same," Janice McFlounder might say. "And before I knew it, I had walked out of Best Buy with a shiny new phone. But then I turned it over and it said 'Samsung.' I couldn't believe it."

Or what if Michael Kasinada, eyes filled with the hurt of the duped, would stare at Samsung's lawyer and exclaim: "Your clients sold me a fake iPad! It's like a fake Rolex, only more expensive! How could you do that to me?"

Failing the wailing of the pained turning the jury, how about at least producing a few people who bought Samsung's machines and would tell the court: "C'mon, it's obvious. These Samsung Tabs are the same as the iPads! And that Samsung logo is so much cooler!"

Though I am sure that each side's lawyers are having enormous fun in parsing the minutiae of gadget design, I feel equally sure that -- whatever the outcome -- the future will still reveal a huge amount of design similarity.

If the new iPhone 5 has a bigger screen, will Samsung attempt to declare: "Gosh, you got that idea from our fine S3?"

When ever-more vast amounts of money are at stake, it's sometimes hard for any company to be too original. They assume everyone wants the same thing, so they make it. Except for Apple, of course, which does no consumer research whatsoever and manages to make genuinely original products. Or at least products that look so much cooler than anyone else's.

But I have a feeling that some designers occasionally consult lawyers while they're designing. They ask them what they can get away with. They rehearse their arguments even before the product leaves their computers.

And now the lawyers are in court seeing whether some of those rehearsals work on the live stage.

Which is why this case needs far more raw human drama.

Line up some real people and offer them the Samsung Challenge. Give them the Apple-Samsung side-by-side and see if they can tell the difference.

There's been too much technical legal swordplay in the tech world lately. It's time to let the people decide.

The poor, nine pressured humans on the jury need help from the fellow men and women, not from lawyers and employees of the two companies.

Because there's one thing you know about all those people with vested interests: not one will be telling the truth, the whole truth and nothing but the truth.

 

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