Technology and AI

A trade mark inquiry argued between 301 dollars and 170 million is assessed at 11.6 million

By Staff Writer  |  28 August 2026

Ten Swatch group companies took Samsung back to the High Court to fix the price of watch face apps that infringed their marks on the Samsung Galaxy App store. Their expert put negotiation damages at about 170 million dollars, Samsung's at 301 dollars. The judge assessed them at 11.6 million dollars, built from a flat fee for store display and a fee for each download.

Liability was settled years ago. Falk J found in May 2022 that watch face applications available on the Samsung Galaxy App store between October 2015 and February 2019 infringed a number of the Swatch group's trade marks, and the Court of Appeal upheld that in December 2023. What came back before Mr Justice Marcus Smith over four days in June, and was handed down on 26 August, was the price.

The two sides were a long way apart. The claimants' expert assessed negotiation damages at about 170 million dollars. Samsung's expert assessed the same infringements at 301 dollars. The judgment opens by noting that there is more or less equal force, or lack of it, in both extremes, and that the exercise is to find a single figure that is rationally rather than arbitrarily calculated.

Three kinds of infringement, and why the classification mattered

The liability findings split into three. Dial branding is the appearance of the sign on the watch face itself, seen by the wearer and by anyone who looks at the wrist. Store display is the use of the sign in the app name on the store listing only, seen by everyone browsing the store whether or not they download anything. The third class combined both.

Samsung's expert had valued only the first of those. The store display infringements and the combined ones fell outside the notional licence he hypothesised, which meant a set of infringements the court had already found were being licensed for nothing. The judge held that was not a permissible basis. The claimants' expert had the opposite problem: he valued a full hardware and software co-branding collaboration that Samsung had never sought and did not need, at unit prices of 450 to 1,300 dollars and at volumes drawn from Samsung's total smartwatch sales rather than from the downloads actually made.

Samsung may not value the (unlawful) use of the Swatch group's brands, but it does value running a lawful and compliant business.

Mr Justice Marcus Smith

That sentence carries the reasoning. The value of the hypothetical licence to Samsung was not the marginal appeal of the brands to its customers, which the judge accepted was slight. It was the cost of making lawful something that was not, which he described as an unavoidable cost of the business Samsung had chosen to run.

The arithmetic the judge actually used

The download figures were common ground: 157,373 downloads in total, of which 617 were paid and 156,756 free, generating between them paid revenue of 1,002.77 dollars. The judge worked on about 160,000 downloads.

Taking the claimants' expert as a rough starting point but stripping out the inflated unit price and volumes, he arrived at an intermediate figure of 7,040,000 dollars, being 160,000 units at 20 per cent of a 220 dollar sale price. He then adjusted it. A percentage of the hardware price was too high for what was only ever a software association, so the dial branding infringements were priced at a flat 10 dollars a download, giving 1.6 million dollars. The store display infringements, which he regarded as the more damaging of the two because the brands were shown on the equivalent of a supermarket shelf at little or no price, took a separate flat fee of 10 million dollars.

Accordingly, I assess the negotiating damages in this case at US$11,600,000.

Mr Justice Marcus Smith

Why it is worth reading outside the watch trade

The judgment is a worked example of a valuation exercise that turns up constantly and is rarely done well: what would the parties have agreed for a release, assessed after the event, when neither of them ever wanted the deal. Both experts here were found to have answered a question other than the one asked, one by leaving proved infringements out of the licence entirely, the other by valuing a collaboration nobody had proposed.

The judge was explicit about the incentive he was setting. The rate had to be high enough to encourage operators of application stores to respect the rights of others, and low enough not to make that business uneconomic. Anyone quantifying a release fee for use of a mark inside a platform now has a figure, and more usefully a method, to argue from.