In the continuing saga that is Apple’s pursuit of Samsung for patent infringement of Apple’s design for its iPad, a British court last week found that although Samsung’s Galaxy Tab tablet computer may not be as “cool” as the iPad, it nevertheless did not infringe on the Cupertino, California, company’s design.  The interesting part of the case, however, was not the holding.  Instead, the most remarkable aspect of the court’s judgment was that Apple would be forced to publicly admit that Samsung did not infringe.

Judge Briss of the Chancery Division of the High Court ordered Apple to post a notice on its UK website – for six months – informing its visitors that Samsung did not, in fact, copy the iPad design with its Galaxy tab.  Additionally, Apple was made to purchase full-page advertisements in top-selling British newspapers informing their readers of the same fact.

Without a doubt this is a fairly novel remedy – especially in a case of this magnitude and notoriety.  In a statement from one of its attorneys, Apple made the argument that the penalty essentially equated to the company being forced to create “an advertisement” for its competitor and to place it on its own homepage.  “No company likes to refer to a rival on its website,” Apple attorney Richard Hacon said.  It is clearly no surprise that Apple plans to appeal the ruling.

Regardless of the outcome of that appeal, however, the potential for this sort of remedy is intriguing.  With intellectual property rights so valuable to companies and individuals, and with infringement so easy to claim, should there be a penalty like this that can be levied against plaintiffs when it is found that their allegations are frivolous?  Beyond the patent context, for example, could such a remedy be employed to combat the prevalence of trademark bullying that has gained media and academia attention of late?

Comparable remedies have already been utilized in other areas of the law.  In libel cases, for example, publications can avoid the imposition of punitive damages and other penalties by issuing a timely retraction and apology once they realize the falsity of their claims.  Similarly, courts have ordered defendants to issue public apologies to prevailing plaintiffs as an equitable remedy in civil rights cases, as well.

Undoubtedly, the issuance of an apology can be powerful – and in a case like Apple’s, potentially very expensive.  In a time when consumer spending on luxury items like consumer electronics is relatively limited, being forced to endorse, or even mention, your competitor at your own expense has the potential to be incredibly damaging to the bottom line.

The question then becomes whether such a penalty may be too harsh.  Especially in a case that has gained such media attention – and one in which a number of similar suits are still pending in other countries – is the imposition of this sort of remedy unduly harsh?  Could Apple’s admission – even if court imposed – be used against it in its remaining cases? Could this penalty actually serve to benefit Samsung beyond where it would have been had the suit not been initiated?  Could the magnitude be compounded by the imposition of similar penalties by other countries’ courts?

All of this – including whether Judge Briss’s ruling will withstand Apple’s appeal – remains to be seen.  There is also currently no indication whether an American court would impose such a remedy in an infringement case.  Should such a penalty gain traction in these types of cases, however, it could serve to significantly change the landscape of intellectual property litigation.

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