Research On Feasibility Of Punitive Damage In Trademark Law Of China

Trademark infringements severely impair the stability of market andthe fair competition, which became violation of public interests ratherthan invasion of personal interests. For reasons that it’s easy toinfringe trademark rights but hard to get relief and the degree of reliefis low, it’s necessary to strengthen the trademark’s self-defense andintensify punishment to trademark infringements. Punitive damage couldhelp to sanction and contain the widespread infringements, which couldalso adapt to the society development. In addition, applying punitivedamage to trademark law is supported by theory of the economics of law.So it’s reasonable and necessary that applying punitive damage totrademark law of china.Punitive damage could help to make up for deficiencies of currentdamage compensation system of trademark as well as the gap of theadministrative protection and criminal protection for trademark, whichcould also improve the tortious liability system of trademark and makeinfringers can’t escape from liability. Punitive damage has already beenapplied to intellectual property law in many areas and also success inchina’s tort liability law; these could provide good reference for thelegislation in our trademark law. However, the usage of punitive damage should be limited for reasons as benefit balance.The punitive damage in trademark law should apply to willful orserious torts, and the calculation standard should base on publiccognition and judgment.