Determination Of The Trademark Infringement Damages

A certain number of years ago, intellectual property began to emerge in the world, wherein the trademark right, as one branch of the intellectual property, provides essential references for the customers during purchase and also brings immeasurable vale to the trademark holder. In addition, the trademark right also bears business reputation of the t rademark holder in the market. However, as the trademark infringement increases, both the trademark right and the business reputation thereon are damaged by the infringers, and thus the trademark holder shall withstand massive loss. Among all the manners for undertaking the trademark infringement liability, infringement damages is one of the best ways to relief for the trademark holder, wh ich shall be calculated to be achieved. Therefore, calculation of the infringement damages is the most significant part during the overall process. The theoretical and practical fields in Japan and China are always focusing on that how to estimate the inf ringement damages of the trademark holder. According to the relevant regulations in Japan and China, the factors “the loss of the infringed”, “the profit of the infringer” and “license fee and discretion” are included, but there are still some differences between the laws thereof respectively. Furthermore, when comparing the justice practices between the two countries, there are also a number of differences in some details of calculation of the infringement damages. The development of intellectual property in Japan is earlier than that in China, and a relative well-established system has been formed in Japan after revision of the laws for several times. In particular, the Trademark Law is revised mainly according to the revision of the Patent Law, after whi ch the protection scope for the trademark holder has been enlarged. In China, the protection of intellectual property is increasingly improved, especially a new breakthrough in the protection of trademark. However, there are still some problems in the calculation of the infringement damages, such as non-concrete judicial interpretation, too much discretion for the courts, different criteria for judgment and the like, and thus the patentee cannot obtain an improved relief. Therefore, the author opines that a comparative study on the calculation of the infringement damages between Japan and China is necessary. As a comparative study, the author discloses the differences between the Trademark Law of Japan and China as well as the justice practices thereof thro ugh comparison, illustrates the positive significant and shortcomings of the calculation of infringement damages as stipulated in PRC Trademark Law in the justice practices, and further proposes the humble opinions thereon, such that a calculation manner o f infringement damages which can preferably balance the benefits between the infringer and infringed is provided.