Is an apology applicable to intellectual property infringement cases?

Company T sued Company E for trademark infringement. T required E to stop the infringement, compensate for the losses, in addition, it required E to publish an apology in its local newspaper. If the court held that E had infringed T’s trademark, whether it would support T’s request for an apology?

The answer is negative. The “Patent Law” has listed the measures of assuming responsibility for infringement; however, the apology is not one of those measures. The reason is that a patent is a property right, which does not have personal attributes. Therefore, it is generally believed that such infringement would not bring negative effect to the patentee’s reputation and image, and the tortfeasor does not have to apologize. In the (2020) Ji Zhi Min Zhong No.127 case in the beginning, the Hebei High People’s Court rejected T’s claim for an apology with the above reason.

Regarding the trademark and trade secrets, these are normally deemed as a pure property right. The “Trademark Law” and the “Anti-Unfair Competition Law” also have not listed an apology as one of the measures of assuming responsibility for infringement. In judicial practice, the courts would not support the plaintiffs’ request on an apology. For example, in the case (2019) Jing 0102 Min Chu No. 4255, the Beijing Xicheng District People’s Court clearly stated: “The exclusive right to use a registered trademark is a property right, which is not suitable to apply the relief measures of an apology. The court would not support the plaintiff’s request on an apology “.

However, there are exceptions. In the cases of infringement of patent, trademark, or trade secrets, where the tortfeasor has violated Article 11 of the “Anti-Unfair Competition Law”, which refers to the tortfeasor has fabricated or disseminated false information or misleading information to harm the business goodwill, product reputation of its competitors; the court might support the plaintiff’s request, if the plaintiff requires an apology by applying Article 23 of the “Anti-Unfair Competition Law” regarding “elimination of the impact”.

Regarding copyright, it shall be different from patent, trademark and so on. Articles 47 and 48 of the “Copyright Law” have listed an apology as one of the measures of assuming responsibility for infringement. The reason is that copyright has the attributes as a property right, such as the rights for reproduction, performance and etc.; and the attributes as a personal right, such as the rights of authorship, modification and etc.. If a tortfeasor has infringed those personal rights, which might bring negative effects to the reputation and image of the right holder. For example, a tortfeasor has modified a right holder’s article by adding some pornographic details, which is likely to bring negative effects to the reputation and fame of the right holder. Under such circumstances, it is obviously necessary for the tortfeasor to explain the facts within the necessary scope and eliminate the negative effects.

Many judgments reflect the above viewpoint. For example, in the case (2020) Jing 73 Min Zhong No. 1708, the Beijing Intellectual Property People’s Court held that the defendant’s action infringed Liu’s right to authorship, and information network transmission, so it shall compensate the economic losses and apologize. In another case (2019) Jing 73 Min Zhong 2402, the Beijing Intellectual Property People’s Court clearly pointed out that the right of information network dissemination is essentially a property right, and rejected the plaintiff’s request on an apology with the reason that the tortfeasor’s action would cause economic losses to the right holder, and would not bring negative effects to the right holder’s personal right.

In summary, regarding the implementation of an apology in intellectual property infringement cases, the key is the nature of the infringed right, whether it is a property right or a personal right. If it is a property right, normally an apology would not be applied; on the other hand, if it involves a personal right, and the plaintiff could provide evidence on the negative effects on its reputation and etc., then it is more likely for the court to order the tortfeasor to apologize.