China's Trademark Jurisprudence on Reputational Harm
NGUYEN_FINAL (DO NOT DELETE) 1/23/2013 7:06 PM TRADEMARK APOLOGETIC JUSTICE: CHINA’S TRADEMARK JURISPRUDENCE ON REPUTATIONAL HARM Professor Xuan-Thao Nguyen* “[A] reputation, like a face, is the symbol of its possessor and creator, and another can use it only as a mask.”1 - Judge Learned Hand “The quality of a trademark owner’s reputation should lie within his own control.”2 INTRODUCTION Will Apple be ordered to apologize for its unauthorized use of the trademark “iPad” in Shenzhen, China?3 Will Apple face massive confiscation of infringing “iPad” products in China?4 * Professor of Law, SMU Dedman School of Law; former IP Associate, Fried, Frank, Harris, Shriver & Jacobson (NYC) and Pryor Cashman Sherman & Flynn (NYC). Many thanks to Pei-Chih “Peggy” Ho, Class of 2011, SMU Dedman School of Law, and Sara Alyn Horner, Class of 2012, for their superb assistance. A version of this Article was presented at Washington University School of Law in January 2012. Special thanks to Erik Darwin Hille and Khai-Leif Nguyen-Hille for their love, patience, and support. 1. Yale Elec. Corp. v. Robertson, 26 F.2d 972, 974 (2d Cir. 1928). Judge Learned Hand’s phrase has been repeatedly quoted by subsequent courts. See, e.g., Commc’ns Satellite Corp. v. Comcet, Inc., 429 F.2d 1245, 1250 (3d Cir. 1970); Holiday Inns of Am., Inc. v. B & B Corp., 409 F.2d 614, 616 (1st Cir. 1969); Polaroid Corp. v. Polaraid, Inc., 319 F.2d 830, 835 (4th Cir. 1963); Fleischmann Distilling Corp. v. Maier Brewing Co., 314 F.2d 149, 159 n.14A (9th Cir.
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