After Monday’s detailed examination of industrial design, the Apple-Samsung trial changed focus to user interface icons, as Apple expert witness and long-time icon designer Susan Kare took the stand.
The testimony appeared tough for the jury to follow, as Judge Lucy Koh interrupted attorneys to remind the jury they could get caffeinated drinks from the jury room if they needed them.
Kare has worked on thousands of icons for hundreds of clients. When Apple attorney Rachel Krevans asked Kare about her knowledge of user impressions, she responded:
“What a person thinks of symbols is the heart of what I do.”
Kare explained why Samsung GUIs — like that of the Fascinate, a version of their Galaxy S smartphone — had the same overall impression described in Apple’s D’305 patent. Kare pointed to alternative GUI designs like the Blackberry Torch to show that Samsung did not need to emulate Apple graphic designs.
Kare testified that, in her opinion, the similarities between the D’305 and the Samsung GUIs were “beyond coincidental.”
Samsung used the same tactics against Kare that they utilized against Bressler yesterday. Verhoeven did a live demo of the Samsung Droid startup process and argued that a consumer starting up phone would figure out it’s a Samsung product by the end of the experience.
Kare replied that she had not studied startup experiences phone to phone because she was testifying based on her expert opinions on graphical user interfaces.
Verhoeven handed Kare a laser pointer to single out individual icons on the Samsung GUI as opposed to the D’305 GUI. Kare joked, “I’m not a laser pointing expert either,” as she showed how the messaging, calendar, weather, and settings icons were individually not substantially similar between the two GUI designs.
Verhoeven further argued that symbols like the green phone icon, the clock icon, and the flower icon for the photo application were more universal and not subject to Apple’s specific design choices.
After pointing out that Kare’s deposition differed from her testimony on the necessity of square icons for GUI functionality, Verhoeven concluded by revealing that Kare was being paid $550 per hour for testifying for Apple for a total of $80,000 earned.
To establish their allegation of trade dress dilution, Apple called NYU marketing professor Russell Winer. Apple attorney Michael Jacobs asked Winer to explain why Apple’s trade dress was extremely strong, and that “Apple trade dresses are the most distinctive in the world.”
Winer spoke of the imitative scenario, where someone could see another person carrying the Galaxy tablet and want to buy it themselves.
Winer argued there was still a chance of confusion, though he admitted he had not done any survey to show consumers were actually confused in buying Apple or Samsung products.
Apple countered by noting that actual consumer confusion was not necessary to reach a finding of trade dress dilution.
Samsung’s Verhoeven once again brought attention to an expert witness’ compensation, citing Winer’s $625 per hour fee for a total of $50,000 earned thus far.
Apple’s last witness called today was Hal Poret, a marketing expert that had done a survey on the association of Apple’s smartphone and tablet products with the actual brand.
Poret explained that people were shown the Apple product with the icons blurred and features removed with a control group being shown similar non-Apple products with their icons and specific features obscured.
Based on Poret’s survey, a majority of people associated the Apple company brand with the product appearance, suggesting that the product’s trade dress had acquired secondary meaning.
In cross examination, Samsung attorney Bill Price kept pointing out that the survey was done in 2011, and the percentage of people recognizing the trade dress went significantly down if the survey only counted people who associated the trade dress with Apple products before the Samsung products mentioned in this case were released.
Poret testified Samsung was improperly interpreting the survey data.
Before adjourning, Judge Koh repeatedly reminded both sides that if their objections required the judge to do more research, the objection time would come out of the trial time of the party that raised it.
At one point, Verhoeven lamented that he was getting unsolicited communications from bloggers and others about their opinions of the Apple v. Samsung case. Koh responded, “I think we all do,” which got a big laugh out of the lawyers and audience.
Court adjourned to resume on Friday morning.