Trademark Apologetic Justice: China and the Three Laws

The article will proceed as follows. Part I discusses the three bodies of law constituting China’s trademark jurisprudence by tracing the development of Trademark Law, Anti-Unfair Competition Law and Civil Law. All of these laws contain relevant provisions pertaining to trademark reputation and remedies, including injunction, damages and public apology to eliminate any bad effects. As China Supreme People’s Court has a significant role in shaping trademark jurisprudence and apologetic justice, Part I also analyzes judicial directives that provide guidance and instructions to the lower courts in addressing trademark reputation remedies. An analysis of only statutes and judicial directives, however, does not provide an accurate understanding of China’s vibrant development of trademark jurisprudence on reputation and apologetic justice. Part II studies judicial decisions rendered by the Chinese courts in trademark reputation cases. Judicial decisions from different levels of the people’s court explain the facts, describe the injuries, apply the law and provide the reasoning for appropriate remedies. If the finding establishes that the infringer did not willfully or maliciously use the trademark or name to mislead the public, the courts will not order a public apology. In this type of case, only injunction and damages are warranted. In other words, if the public has not been harmed, there is no need to have the public involved in healing through reading apologies in newspapers or trade publications. What does a public apology entail? What is the content of a public apology in a trademark case? Part III provides several actual apologies published by individual and entity infringers in newspapers and trade journals. They are illuminating examples, as the infringers, in writing and in the public forum, acknowledge the plaintiff’s exclusive right in a trademark or name, admit the wrongdoing, apologize for the conduct, and promise not to commit infringing conduct in the future. These newspapers and trade journals are available in print and online for the public to read. Learning how China’s trademark jurisprudence treats reputation and develops apologetic justice can serve as an opportunity to reflect on Judge Learned Hand’s astute observation on injury to trademark reputation. Part IV inspects U.S. law and its treatment of injury to trademark reputation. Compared to China wherein injunction and damages are routinely granted to the prevailing plaintiff, U.S. law does not authorize the courts to grant an automatic injunction upon finding that the plaintiff has succeeded on the merits. Damages are difficult to prove in U.S. trademark cases. In addition, only 2% of U.S. trademark cases advance to trial and only some of those cases receive damage awards. Most significantly, U.S. law does not recognize harm to the public. The courts only provide, if any, injunctive relief and damages. Harm to trademark reputation, particularly in cases wherein the infringer maliciously or willfully misleads the public, is harmful to both the plaintiff and the public. China’s trademark jurisprudence and apologetic justice certainly offer a model for the United States to contemplate. Whether the United States will consider apologetic justice in trademark reputation cases is a question for further debate. At the very least U.S. businesses should not be surprised that the plaintiff in a trademark infringement action, which was filed by a Chinese company, Proview Technology, against Apple for the use of the name “iPad,” is demanding an apology in addition to injunction and damages. Knowledge of China’s jurisprudence is essential in our globally competitive and fast-changing world today